Loper Bright Enterprises, Inc. v. Wilbur L. Ross, Jr.

• Court: District Court, District of Columbia
• Decided: June 15, 2021
• Docket: Civil Action No. 2020-0466
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Loper Bright Enterprises, Inc., et al.,

Plaintiffs,

v. Civ. Action No. 20-466 (EGS)

GINA RAIMONDO, in her official capacity, Secretary, U.S. Department of Commerce, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs, “a collection of commercial fishing firms

headquartered in southern New Jersey that participate regularly

in the Atlantic herring fishery,” challenge the U.S. Department

of Commerce Secretary’s final rule promulgating the New England

Industry-Funded Monitoring Omnibus Amendment (“Omnibus

Amendment”) and its implementing regulations, which establish a

process for administering future industry-funded monitoring in

Fishery Management Plans governing certain New England fisheries

and implement a required industry-funded monitoring program in

the Atlantic herring fishery. Pls.’ Mem. P. & A. Supp. Mot.

Summ. J. (“Pls.’ Mot.”), ECF No. 18-1 at 22-23. 1 Plaintiffs

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. allege that the Omnibus Amendment suffers from procedural flaws

and violates the directives of the Magnuson-Stevens Fishery

Conservation and Management Act (“MSA”), 16 U.S.C. § 1801 et

seq.; the National Environmental Policy Act (“NEPA”), 42 U.S.C.

§ 4321 et seq.; the Regulatory Flexibility Act, 5 U.S.C. § 601

et seq.; and the Administrative Procedure Act, 5 U.S.C. § 701 et

seq. See Compl., ECF No. 1. Plaintiffs further contend that the

industry-funded monitoring requirement constitutes an

unconstitutional tax and violates the Anti-Deficiency Act, 31

U.S.C. § 1341; the Independent Offices Appropriations Act, 31

U.S.C. § 9701; and the Miscellaneous Receipts Act, 31 U.S.C. §

3302. See Pls.’ Mot., ECF No. 18-1 at 38-40. Defendants—Gina

Raimondo, 2 Secretary of the U.S. Department of Commerce; the U.S.

Department of Commerce; Benjamin Friedman, 3 Deputy Under

Secretary for Operations, performing the duties of Under

Secretary of Commerce for Oceans and Atmosphere and National

Oceanic and Atmospheric Administration (“NOAA”) Administrator;

the NOAA; Chris Oliver, Assistant Administrator for NOAA

2 Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes as defendant the United States Secretary of Commerce, Gina Raimondo, for the former United States Secretary of Commerce, Wilbur L. Ross. 3 Pursuant to Federal Rule of Civil Procedure 25(d), the Court

substitutes as defendant the current Official Performing the Duties of NOAA Administrator, Benjamin Friedman, for the former Acting NOAA Administrator, Neil Jacobs. 2 Fisheries; and the National Marine Fisheries Service (“NMFS”)—

dispute Plaintiffs’ claims.

Pending before the Court are Plaintiffs’ Motion for Summary

Judgment, ECF No. 18; Defendants’ Cross-Motion for Summary

Judgment, ECF No. 20; and Defendants’ Motion to Exclude

Plaintiffs’ Extra-Record Declaration, ECF No. 24. Upon

consideration of the parties’ submissions, the applicable law,

and the entire record herein, the Court DENIES Plaintiffs’

Motion for Summary Judgment, GRANTS Defendants’ Cross-Motion for

Summary Judgment, and GRANTS Defendants’ Motion to Exclude.

I. Background

A. Statutory and Regulatory Background

1. The Magnuson-Stevens Fishery Conservation and Management Act of 1976

The MSA “balances the twin goals of conserving our nation’s

aquatic resources and allowing U.S. fisheries to thrive.”

Oceana, Inc. v. Pritzker, 26 F. Supp. 3d 33, 36 (D.D.C. 2014).

Congress enacted the MSA to, among other things, “conserve and

manage the fishery resources found off the coasts of the United

States,” and “promote domestic commercial and recreational

fishing under sound conservation and management principles.” 16

U.S.C. § 1801(b)(1), (3). The MSA tasks the Secretary of

Commerce with the pursuit of these goals, and the Secretary has

in turn delegated her responsibility to the National Marine

3 Fisheries Service (“NMFS” or the “Service”). 4 See 16 U.S.C. §

1855(d). In addition, the MSA divides the country into eight

regions, and establishes a Fishery Management Council in each

region to manage the region’s marine fisheries. 5 See id. § 1852.

“Together, the Service and the Councils act to address

imbalances in aquatic ecosystems.” Oceana, Inc., 26 F. Supp. 3d

at 37.

Each Fishery Management Council must prepare and submit to

the Secretary of the U.S. Department of Commerce a Fishery

Management Plan (“FMP”), which is approved by the Service. 16

U.S.C. §§ 1852(h), 1854(a). As is most relevant here, the New

England Fishery Management Council (“NEFMC” or the “Council”) is

responsible for developing and recommending FMPs for fisheries

in the Atlantic Ocean seaward of Maine, New Hampshire,

Massachusetts, Rhode Island, and Connecticut, including the

Atlantic herring fishery. See id. §§ 1852(a)(1)(A), 1852(h)(1).

FMPs contain “conservation and management measures” that

are “necessary and appropriate for the conservation and

management of the fishery, to prevent overfishing and rebuild

4 The Service is a federal agency within the Department of Commerce’s NOAA. 5 The MSA defines a “fishery” as “one or more stocks of fish

which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics” and “any fishing for such stocks.” 16 U.S.C. § 1802(13). 4 overfished stocks, and to protect, restore, and promote the

long-term health and stability of the fishery.” Id. §

1853(a)(1)(A). FMPs must also be consistent with the ten

“national standards” provided for in the MSA, as well as all

other provisions of the MSA, and “any other applicable law.” Id.

§ 1853(a)(1)(C); see also id. § 1851 (setting forth National

Standards). In this case, Plaintiffs claim that the Omnibus

Amendment violates two of those national standards:

[“National Standard Seven”:] Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.

[“National Standard Eight”:] Conservation and management measures shall, consistent with the conservation requirements of this chapter (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of paragraph (2), in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.

Id. § 1851(a)(7)-(8).

FMPs may also include additional discretionary provisions

to conserve and manage fisheries. Id. § 1853(b). Among other

things, FMPs may “require that one or more observers be carried

on board a vessel of the United States engaged in fishing for

species that are subject to the plan, for the purpose of

collecting data necessary for the conservation and management of

5 the fishery.” Id. § 1853(b)(8). FMPs may also “prescribe such

other measures, requirements, or conditions and restrictions as

are determined to be necessary and appropriate for the

conservation and management of the fishery.” Id. § 1853(b)(14).

After a council prepares an FMP or amendment and any

proposed implementing regulations, it submits them to the

Service, which acts on behalf of the Commerce Secretary, for

review. See generally id. § 1854. The Service reviews the

submission for consistency with applicable law and solicits

public comments for sixty days. Id. § 1854(a)(1)(A)–(B). Within

thirty days of the end of the comment period, the Service shall

approve, disapprove, or partially approve the submission. Id. §

1854(a)(3). If the Service approves, a final rule is published

in the Federal Register. See id. § 1854(b)(3). Approved FMPs or

amendments are subject to judicial review under the APA within

thirty days. See id. § 1855(f)(1).

2. The National Environmental Policy Act

Congress enacted NEPA “to use all practicable means,

consistent with other essential considerations of national

policy, to improve and coordinate Federal plans, functions,

programs, and resources to the end that the Nation may . . .

fulfill the responsibilities of each generation as trustee of

the environment for succeeding generations.” 42 U.S.C. §

4331(b). To comply with these obligations, agencies must prepare

6 an Environmental Impact Statement (“EIS”) in which the agency

takes a “hard look” at the environmental consequences before

taking major action. Id. § 4332(c). An EIS must “inform decision

makers and the public of reasonable alternatives that would

avoid or minimize adverse impacts . . . of the human

environment.” 40 C.F.R. § 1502.1.

To determine whether an EIS must be prepared, the agency

must first prepare an environmental assessment (“EA”), which

must (1) “[b]riefly provide sufficient evidence and analysis for

determining whether to prepare an environmental impact statement

or a finding of no significant impact.” Id. § 1501.5(c). Even if

the agency performs only an EA, it must still briefly discuss

the need for the proposal, the alternatives, and the

environmental impacts of the proposed action and the

alternatives. Id. If the agency determines, after preparing an

EA, that a full EIS is not necessary, it must prepare a Finding

of No Significant Impact (“FONSI”) setting forth the reasons why

the action will not have a significant impact on the

environment. Id. § 1501.6. An EA and FONSI alone will not be

sufficient, however, in certain circumstances. Agencies must

prepare a supplement to a draft or final EIS when: (1) “[t]he

agency makes substantial changes to the proposed action that are

relevant to environmental concerns”; or (2) “[t]here are

significant new circumstances or information relevant to

7 environmental concerns and bearing on the proposed action or its

impacts.” 40 C.F.R. § 1502.9(d)(1).

B. Factual Background

Plaintiffs—a “collection of commercial fishing firms

headquartered in southern New Jersey that participate regularly

in the Atlantic herring fishery,” Pls.’ Mot., ECF No. 18-1 at

23—challenge the Omnibus Amendment, which the NEFMC finalized in

2018 to establish a standardized process for the development of

industry-funded monitoring in FMPs across New England fisheries

and to establish industry-funded monitoring in the Atlantic

herring fishery. See Administrative R. (“AR”) at 17769-71. The

approved Omnibus Amendment measures include the following “core

elements”:

First, the omnibus measures establish a process for FMP-specific industry monitoring to be implemented through an FMP amendment and revised through a framework adjustment. . . .

Second, the omnibus measures identify standard cost responsibilities for industry-funded monitoring for NMFS and the fishing industry, dividing those responsibilities by cost category. . . .

Third, the omnibus measures establish standard administrative requirements for monitoring service providers and industry-funded observers/monitors as set forth in 50 C.F.R. § 648.11(h) and (i), respectively. . . .

Fourth, the omnibus measures establish a Council-led process for prioritizing [industry-funded monitoring] programs for available federal funding across New England FMPs. . . . 8 Fifth, the omnibus measures standardize the process to develop future monitoring set-aside programs, and allow monitoring set-aside programs to be developed in a framework adjustment to the relevant FMP.

Defs.’ Opp’n, ECF No. 20-1 at 18-19; see also Pls.’ Mot., ECF

No. 18-1 at 22-23.

In addition, there are approved measures establishing

industry-funded monitoring in the Atlantic herring fishery, 6

which is managed through the Atlantic Herring FMP. See Defs.’

Opp’n, ECF No. 20-1 at 20-21; Pls.’ Mot., ECF No. 18-1 at 22-23.

In other words, this mandate “requires herring fishermen along

the eastern seaboard of the United States to carry [NOAA]

contractors—called ‘at-sea monitors’—on their vessels during

fishing trips and, moreover, to pay out-of-pocket for”

associated costs. Compl., ECF No. 1 ¶ 1. Among other things, the

measures establish a 50 percent monitoring coverage target for

all declared herring trips undertaken by a vessel possessing a

Category A or B limited access herring permit. 7 See Defs.’ Opp’n,

6 Atlantic herring inhabit the Atlantic Ocean off of the East coast of the United States and Canada, ranging from North Carolina to the Canadian Maritime Provinces. AR 17103. Atlantic herring play an important role in the Northwest Atlantic ecosystem, serving as a “forage species” for a number of other fish, marine mammals, and seabirds. Id. at 17070, 17161, 17511. There is also a directed fishery for Atlantic herring, composed primarily of vessels using midwater trawl gear, small-mesh bottom trawl vessels, and purse seines. Id. at 17104. 7 “The Atlantic Herring FMP achieves the NEFMC’s management goals

through a stock-wide annual catch limit (‘ACL’) that is allocated between four distinct geographic management areas . . 9 ECF No. 20-1 at 20; Pls.’ Mot., ECF No. 18-1 at 22-23. The

monitoring coverage target includes a combination of both

industry-funded monitoring, as well as NMFS-funded Standardized

Bycatch Reporting Methodology (“SBRM”) coverage. Defs.’ Opp’n,

ECF No. 20-1 at 20; Pls.’ Mot., ECF No. 18-1 at 23. “Vessel

owners would pay for any additional monitoring coverage above

SBRM coverage requirements to achieve the 50% coverage target,

which is calculated by combining SBRM and [industry-funded

monitoring] coverage, thus a vessel will not have SBRM and

[industry-funded monitoring] coverage on the same trip.” Defs.’

Opp’n, ECF No. 20-1 at 20-21. “On any given trip, if a vessel is

notified that it will ‘need at-sea monitoring coverage’ and it

has not already been assigned an observer, ‘[it] will be

required to obtain and pay for an at-sea monitor on that trip.’”

Pls.’ Mot., ECF No. 18-1 at 23 (quoting AR 17735). “Any

additional coverage above SBRM is contingent on NMFS having

appropriated funds to pay for its administrative costs for

. .” Compl., ECF No. 1 ¶ 63 (citing 50 C.F.R. § 648.200(f)). The four areas include: “Area 1A – Inshore Gulf of Maine”; “Area 1B – Offshore Gulf of Maine”; “Area 2 – South Coastal Area”; and “Area 3 – Georges Bank.” Id. A Category A permit is an All Areas Limited Access permit that allows vessels with such permits to fish in all areas. See AR 17135, AR 17152. A Category B permit is an Areas 2/3 Limited Access permit that allows vessels to fish in areas 2 and 3. Id. Category A and B permit holders are not restricted in the amount of herring they can catch per trip or land per calendar day. Compl., ECF No. 1 ¶ 68. 10 [industry-funded monitoring] coverage.” Defs.’ Opp’n, ECF No.

20-1 at 21 (quoting AR 17737).

There are some exceptions to the coverage requirements. On

a trip-by-trip basis, coverage requirements may be waived if:

(1) “monitoring coverage is unavailable”; (2) “vessels intend to

land less than 50 metric tons (mt) of herring”; or (3) “wing

vessels carry no fish on pair trawling trips.” Id. (citing AR

17735). Furthermore, the Service may “issue an exempted fishing

permit (EFP) to midwater trawl vessels that choose to use

electronic monitoring together with portside sampling. . . . The

EFP exempts midwater trawl vessels from at-sea monitoring

coverage, and allows use of electronic monitoring and portside

sampling to comply with the 50% [industry-funded monitoring]

coverage target.” Id. (citing AR 17736-37).

NMFS has acknowledged that “[i]ndustry-funded monitoring

w[ill] have direct economic impacts on vessels issued Category A

and B permits participating in the herring fishery,” including

an estimated cost responsibility of up to $710 per day and an

approximately 20% reduction in annual returns-to-owner in some

situations. AR 17735.

C. Procedural History

The NEFMC adopted the Omnibus Amendment on April 20, 2017,

and finalized the recommendations for industry-funded monitoring

in the Atlantic herring fishery on April 19, 2018. AR 17731. On

11 September 19, 2018, Defendants published a “notice of

availability” in the Federal Register, opening a sixty-day

comment period for the Secretary of Commerce’s decision on the

Omnibus Amendment. Id. On December 18, 2018, NEFMC was informed

by letter that NMFS had approved the Omnibus Amendment on behalf

of the Secretary of Commerce. Id.

On November 7, 2018, Defendants also published in the

Federal Register a proposed rule to implement the Omnibus

Amendment and opened a public comment period ending on December

24, 2019. Id. Defendants published the final rule implementing

the Omnibus Amendment on February 7, 2020. Id. at 17731-59. The

regulations associated with establishing the standard for

developing industry-funded monitoring programs (“omnibus

measures”) became effective on March 9, 2020, and the

regulations associated with industry-funded monitoring in the

Atlantic herring fishery became effective on April 1, 2020. See

Defs.’ Opp’n, ECF No. 20-1 at 23.

Plaintiffs filed suit against Defendants on February 19,

2020. See Compl., ECF No. 1. Defendants filed their Answer on

April 9, 2020, along with a certified list of the contents of

the administrative record. See Answer, ECF No. 12; Notice, ECF

No. 13. On May 4, 2020, the Court granted Plaintiffs’ unopposed

motion to expedite the case “in every possible way,” pursuant to

the MSA, 16 U.S.C. § 1855(f)(4). See Min. Order (May 4, 2020).

12 Plaintiffs filed their motion for summary judgment on June

8, 2020, seeking a Court order “declar[ing] industry-funding

monitoring unlawful, enjoin[ing] Defendants from pursuing it,

and vacat[ing] the Omnibus Amendment.” Pls.’ Mot., ECF No. 18-1

at 14. Defendants filed their opposition and cross-motion for

summary judgment on July 24, 2020. See Defs.’ Opp’n, ECF No. 20.

Plaintiffs filed their reply brief and opposition to Defendants’

cross-motion on August 14, 2020, see Pls.’ Reply, ECF No. 22;

and Defendants filed their reply brief on September 4, 2020, see

Defs.’ Reply, ECF No. 26. In addition, on August 25, 2020,

Defendants filed a motion to exclude Plaintiffs’ extra-record

declaration (ECF No. 22-1). Defs.’ Mot. Exclude, ECF No. 24.

Plaintiffs opposed Defendants’ motion on September 3, 2020, see

Pls.’ Opp’n Exclude, ECF No. 25; and Defendants replied on

September 10, 2020, see Defs.’ Reply Exclude, ECF No. 27. The

cross-motions for summary judgment and the motion to exclude

extra-record evidence are ripe for adjudication.

On May 17, 2021, Plaintiffs filed a notice of factual

development, informing the Court that Defendants had “pushed

back implementation” of the industry-funded monitoring

requirement to July 1, 2021. See Notice Factual Development, ECF

No. 35.

13 II. Legal Standard

Summary judgment is appropriate where “there is no genuine

issue as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Courts

review agency decisions under the MSA and NEPA pursuant to

Section 706(2) of the APA. See Oceana, Inc. v. Locke, 670 F.3d

1238, 1240-41 (D.C. Cir. 2011); C & W Fish Co. v. Fox, Jr., 931

F.2d 1556, 1562 (D.C. Cir. 1991). Accordingly, the Court’s

review on summary judgment is limited to the administrative

record. See 5 U.S.C. § 706; Richards v. INS, 554 F.2d 1173, 1177

(D.C. Cir. 1977) (“Summary judgment is an appropriate procedure

for resolving a challenge to a federal agency’s administrative

decision when review is based upon the administrative record.”);

Nat’l Min. Ass’n v. Jackson, 856 F. Supp. 2d. 150, 155 (D.D.C.

2012) (“When reviewing agency actions under the APA, the Court’s

review is limited to the administrative record, either ‘the

whole record or those parts of it cited by a party.’” (citation

omitted)).

Under the APA, courts must set aside agency action that is

“(A) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; (B) contrary to constitutional

right, power, privilege, or immunity; (C) in excess of statutory

jurisdiction, authority, or limitations, or short of statutory

right; [or] (D) without observance of procedure required by

14 law.” 5 U.S.C. § 706(2)(A)-(D); see also 16 U.S.C. § 1855(f)(1)

(stating that a court “shall only set aside any such regulation

or action on a ground specified in section 706(2)(A), (B), (C),

or (D) of [the APA]”). Under the APA’s “narrow” standard of

review, “a court is not to substitute its judgment for that of

the agency,” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); and “will

defer to the [agency’s] interpretation of what [a statute]

requires so long as it is ‘rational and supported by the

record.’” Oceana, Inc., 670 F.3d at 1240 (quoting C & W Fish

Co., 931 F.2d at 1562).

Although “[j]udicial review of agency action under the MSA

is especially deferential,” N.C. Fisheries Ass’n, Inc. v.

Gutierrez, 518 F. Supp. 2d 62, 79 (D.D.C. 2007); to meet the APA

standard an agency must “examine the relevant data and

articulate a satisfactory explanation for its action including a

rational connection between the facts found and the choice

made,” PPL Wallingford Energy LLC v. Fed. Energy Regulatory

Comm’n, 419 F.3d 1194, 1198 (D.C.Cir.2005) (quoting State Farm,

463 U.S. at 43) (internal quotation marks omitted). An agency

acts arbitrarily and capriciously when the agency (1) “has

relied on factors which Congress has not intended it to

consider,” (2) “entirely failed to consider an important aspect

of the problem,” (3) “offered an explanation for its decision

15 that runs counter to the evidence before the agency,” or (4) “is

so implausible that it could not be ascribed to difference in

view or the product of agency expertise.” Advocates for Highway

& Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d

1136, 1144-45 (D.C. Cir. 2005) (quoting State Farm, 463 U.S. at

43). In addition, when a party challenges an FMP, plan

amendment, or regulation as inconsistent with one or more of the

ten National Standards set forth in 16 U.S.C. § 1851(a), a

court’s “task is not to review de novo whether the amendment

complies with these standards but to determine whether the

Secretary’s conclusion that the standards have been satisfied is

rational and supported by the record.” C & W Fish Co., 931 F.2d

at 1562 (citing 16 U.S.C. § 1855(d)). “Fisheries regulation

requires highly technical and scientific determinations that are

within the agency’s expertise, but are beyond the ken of most

judges.” N.C. Fisheries Ass’n, 518 F. Supp. 2d at 80; see also

Ocean Conservancy v. Gutierrez, 394 F. Supp. 2d 147, 157 (D.D.C.

2005) (“Courts defer to NMFS decisions that are supported in the

record and reflect reasoned decision making, especially where,

as here, the dispute involves technical legal issues that

implicate substantial agency expertise.”), aff’d, 488 F.3d 1020

(D.C. Cir. 2007).

However, the “deferential standard cannot permit courts

merely to rubber stamp agency actions, nor be used to shield the

16 agency’s decision from undergoing a thorough, probing, in-depth

review.” Flaherty v. Bryson, 850 F. Supp. 2d 38, 47 (D.D.C.

2012) (internal citations and quotation marks omitted). The

court should evaluate “whether the decision was based on a

consideration of the relevant factors and whether there has been

a clear error of judgment.” Id. (quoting Bloch v. Powell, 348

F.3d 1060, 1070 (D.C.Cir.2003)).

III. Analysis

A. The Court Will Not Consider Plaintiffs’ Extra-Record Declaration

As an initial matter, Defendants seek to exclude a

declaration signed by Jeffrey Howard Kaelin—the Director of

Sustainability and Government Relations at Lund’s Fisheries 8—and

any portion of Plaintiffs’ reply brief that relies on it. Defs.’

Mot. Exclude, ECF No. 24-1 at 1-2; Kaelin Decl., ECF No. 22-1 ¶

1. Mr. Kaelin’s declaration, which Plaintiffs attached to their

reply brief, discusses the costs associated with Lund’s

Fisheries’ efforts to install video monitoring system (“VMS”)

units on several vessels during the months of January, February,

8 Lund’s Fisheries is not a plaintiff in this case. However, according to Plaintiffs, several Plaintiffs have the same owners and managers as Lund’s Fisheries, and, as such, they are operated together as a “single family of businesses.” See Compl., ECF No. 1 ¶ 19; Pls.’ Opp’n Exclude, ECF No. 25 at 6. For example, Plaintiff Loper Bright Enterprises, Inc., co-owns and operates a vessel with the owners of Lund’s Fisheries. See Compl., ECF No. 1 ¶ 11; Pls.’ Opp’n Exclude, ECF No. 25 at 6. 17 and March 2020. See Kaelin Decl., ECF No. 22-1 ¶¶ 7-12. The

declaration also discusses the economic feasibility of Lund’s

Fisheries converting three vessels so that they qualify for the

Omnibus Amendment’s waiver for vessels that catch less than 50

metric tons. Id. ¶¶ 13-18. According to Plaintiffs, “Mr.

Kaelin’s declaration is offered principally for illustrative

purposes and to give the Court the full context behind costs

associated with vessel monitoring and the nature of several of

the boats owned and operated by Plaintiffs.” Pls.’ Reply, ECF

No. 22 at 23 n.8. Thus, because Plaintiffs “do not rely on Mr.

Kaelin’s declaration in their discussion of Defendants’ failure

to properly consider the costs of industry-funded monitoring,”

Plaintiffs argue that the Court may consider the information

contained in the declaration. Pls.’ Opp’n Exclude, ECF No. 25 at

7, 10-11.

However, there is no “illustrative purposes” exception to

the general rule that review of an agency’s action under the APA

“is to be based on the full administrative record that was

before [the agency] at the time [it] made [its] decision.”

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

420 (1971). While a court may consider extra-record evidence in

reviewing agency action in limited circumstances, the party

seeking admittance of the extra-record evidence must

“demonstrate unusual circumstances justifying a departure from

18 [the] general rule.” City of Dania Beach v. FAA, 628 F.3d 581,

590 (D.C. Cir. 2010) (quoting Tex. Rural Legal Aid v. Legal

Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991)). The Court of

Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has identified only three such unusual circumstances: “(1) if

the agency ‘deliberately or negligently excluded documents that

may have been adverse to its decision,’ (2) if background

information [is] needed ‘to determine whether the agency

considered all the relevant factors,’ or (3) if the ‘agency

failed to explain administrative action so as to frustrate

judicial review.’” Id. (quoting Am. Wildlands v. Kempthorne, 530

F.3d 991, 1002 (D.C. Cir. 2008)). Accordingly, given that

“[t]hese narrow exceptions must be applied sparingly to maintain

incentives for interested parties to present their evidence and

views fully before an agency renders a final decision and to

ensure that courts limit their role to the review of what

occurred before the agency,” Ctr. for Biological Diversity v.

U.S. Army Corps of Eng’rs, No. 20-cv-103, 2020 WL 5642287, at *9

(D.D.C. Sept. 22, 2020) (citations omitted); the Court declines

to review the declaration, even for “illustrative purposes.”

Plaintiffs next argue, however, that even if the Court

declines to consider the declaration for “illustrative

purposes,” the Court may consider the declaration under an

exception to the general rule precluding extra-record evidence.

19 First, Plaintiffs argue that “Mr. Kaelin’s declaration

provides information that is absent from the administrative

record and would otherwise ‘enable the court to understand the

issues [at hand more] clearly.’” Pls.’ Opp’n Exclude, ECF No. 25

at 12 (citing Esch, 876 F.2d at 991). In making this argument,

Plaintiffs rely on the D.C. Circuit case Esch v. Yeutter, 876

F.2d 976 (D.C. Cir. 1989), which recognized eight exceptions to

the general rule, including an exception “when a case is so

complex that a court needs more evidence to enable it to

understand the issues clearly.” Id. at 991. However, since the

D.C. Circuit decided Esch in 1989, the case has been “given a

limited interpretation.” Hill Dermaceuticals, Inc. v. FDA, 709

F.3d 44, 47 (D.C. Cir. 2013) (citing Theodore Roosevelt

Conservation P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir.

2010)). According to the D.C. Circuit, “at most [Esch] may be

invoked to challenge gross procedural deficiencies—such as where

the administrative record itself is so deficient as to preclude

effective review.” Id.; see also Butte Cnty., Calif. v.

Chaudhuri, 887 F.3d 501, 507 (D.C. Cir. 2018) (“[T]hose narrow

and rarely invoked exceptions apply when evidence is excluded

from the record because of some ‘gross procedural

deficiency.’”(quotation marks and alteration omitted)). Indeed,

“the Circuit has gradually winnowed the number of circumstances

in which courts may consider extra-record evidence” to only the

20 three exceptions recited above. Oceana, Inc. v. Ross, 454 F.

Supp. 3d 62, 68 n.5 (D.D.C. 2020) (citing Dania Beach, 628 F.3d

at 590). Thus, in view of the D.C. Circuit’s restricted view of

Esch, courts in this Circuit may no longer consider extra-record

information solely “to understand the issues [at hand more]

clearly.” And even if the Court did consider it to be a valid

exception, the facts in this case are not so complex that it

would require extra-record evidence to clearly understand them.

Second, Plaintiffs contend that the declaration should be

admitted as extra-record evidence because they “have highlighted

serious procedural irregularities in Defendants’ approval of the

Omnibus Amendment, which suggest prejudgment of the legality of

industry-funded monitoring.” Pls.’ Opp’n Exclude, ECF No. 25 at

12. Specifically, Plaintiffs note that Defendants published the

Omnibus Amendment’s implementing regulations in November 2018,

prior to the Commerce Secretary’s approval of the Omnibus

Amendment in mid-December 2018. Pls.’ Mot., ECF No. 18-1 at 54.

In addition, following the Secretary’s approval of the Omnibus

Amendment, “NOAA informed the NEFMC of that approval in a non-

public letter that it never officially disseminated.” Id.

Plaintiffs’ contend that these alleged procedural

irregularities, coupled with the fact that Plaintiffs raise

claims under NEPA and the Regulatory Flexibility Act, are

sufficient reasons to justify admitting extra-record evidence.

21 Pls.’ Opp’n Exclude, ECF No. 25 at 12. But this argument also

fails. To the extent that evidence of procedural irregularities

remains an exception following the D.C. Circuit’s narrowing of

Esch, a review of the MSA’s provisions governing the Secretary’s

review of FMPs and proposed regulations shows that Defendants

followed proper procedures, as this Court more fully discusses

in Section III.I below. And in any event, Plaintiffs fail to

explain how a declaration discussing various costs related to

fishing vessels would assist the Court’s analysis of any alleged

procedural irregularities in promulgating the final rule and

regulations.

Third, Plaintiffs appear to seek to include the declaration

as “background information,” which is an exception to the

general rule when the information is needed “to determine

whether the agency considered all the relevant factors.” Pls.’

Opp’n Exclude, ECF No. 25 at 12. The Court remains unpersuaded.

“To satisfy the relevant factors exception, the document in

question must do more than raise nuanced points about a

particular issue; it must point out an entirely new general

subject matter that the defendant agency failed to consider.”

Ross, 454 F. Supp. 3d at 70 (quoting Pinnacle Armor, Inc. v.

United States, 923 F. Supp. 2d 1226, 1234 (E.D. Cal. 2013))

(quotation marks omitted). “In a complicated, scientific

analysis, . . . consideration of the intermediary evidentiary

22 factors which lead to the ultimate conclusion are the very means

by which the agency renders its decision and, generally

speaking, any of them can be a ‘relevant factor’ justifying

supplementation of the administrative record if ignored.” Id.

(quoting Sw. Ctr. for Biological Diversity v. Babbitt, 131 F.

Supp. 2d 1, 8 (D.D.C. 2001)).

Here, the administrative record is clear that Defendants

considered VMS installation costs and how the 50-metric-ton

exemption would affect midwater trawl vessels. See, e.g., AR

17742 (“Waiving industry-funded monitoring requirements on

certain trips, including trips that land less than 50 mt of

herring and pair trawl trips carrying no fish, would minimize

the cost of additional monitoring [for certain smaller vessels].

. . . Electronic monitoring and portside sampling may be a more

cost effective way for midwater trawl vessels to meet the 50-

percent coverage target requirement than at-sea monitoring

coverage.”); id. at 10821 (noting the “highly variable” costs of

installing electronic video monitoring systems); see also id. at

17250; id. at 17264. Plaintiffs also appear to concede as much.

See, e.g., Pls.’ Opp’n Exclude, ECF No. 25 at 13 (“Here,

Defendants and the NEFMC considered VMS and other operating

costs. . . . Industry stakeholders presented them with concerns

about the limited impact of the proposed 50-metric-ton exemption

and the viability of fish[er]men simply moving to a different

23 fishery. Mr. Kaelin’s testimony merely provides more concrete

detail that shows Defendants failed to adequately consider these

issues.”). Thus, the Court finds that Mr. Kaelin’s declaration

“does not add factors that [the agency] failed to consider as

much as it questions the manner in which [the agency] went about

considering the factors it did.” Corel Corp. v. United States,

165 F. Supp. 2d 12, 31-32 (D.D.C. 2001).

Finally, Plaintiffs argue that “[i]f the Court excludes Mr.

Kaelin’s declaration, it may still consider the cost survey and

order Defendants to complete the record with the data compiled

by” the Mid-Atlantic Fishery Management Council regarding

compliance cost information. Pls.’ Opp’n Exclude, ECF No. 25 at

15-16. As Plaintiffs did not object to Defendants’ compilation

of the administrative record and have not filed a motion

requesting that the Court supplement the administrative record

with such information, the Court declines to order Defendants to

produce the information now.

Accordingly, the Court finds that Plaintiffs have not

demonstrated exceptional circumstances justifying departure from

the general rule against extra-record evidence.

B. The MSA Authorizes Industry-Funded Monitoring

Plaintiffs first contend that Defendants exceeded their

statutory authority under the MSA in promulgating the industry-

funded monitoring measures within the Omnibus Amendment. See

24 Pls.’ Mot., ECF No. 18-1 at 27. Plaintiffs argue that the MSA

does not authorize industry-funded monitoring in the Atlantic

herring fishery or in the other New England fisheries

contemplated in the amendment. Id. at 28. And because the

expected economic impact of such monitoring programs is

“possibly disastrous for the herring fleet,” Plaintiffs contend

that Congress would not grant authority for such significant

measures through an implicit delegation. Id. Defendants, in

opposition, argue that “Congress has spoken directly to the

precise question at issue by including multiple provisions in

the MSA that presuppose” industry-funded monitoring. Defs.’

Opp’n, ECF No. 20-1 at 26. Even if the Court finds that Congress

has not directly spoken on the issue, Defendants argue that

NMFS’s interpretation of the MSA was reasonable. Id.

In reviewing an agency’s interpretation of a statute

Congress has entrusted it to administer, courts’ analyses are

governed by Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). Under step one of the

Chevron analysis, “[i]f the intent of Congress is clear, that is

the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of

Congress.” 467 U.S. at 842-43. Courts utilize “traditional tools

of statutory construction” to determine whether Congress has

unambiguously expressed its intent. Serono Lab’ys, Inc. v.

25 Shalala, 158 F.3d 1313, 1319 (D.C. Cir. 1998) (quoting Chevron,

467 U.S. at 843 n.9). “When the statute is clear, the text

controls and no deference is extended to an agency’s

interpretation in conflict with the text.” Adirondack Med. Ctr.

v. Sebelius, 29 F. Supp. 3d 25, 36 (D.D.C. 2014) (citing Chase

Bank USA, N.A. v. McCoy, 562 U.S. 195 (2011)). Under step two of

the Chevron analysis, if Congress “has not directly addressed

the precise question” at issue, the agency’s interpretation of

the statute is entitled to deference so long as it is

“reasonable” and not otherwise “arbitrary, capricious, or

manifestly contrary to the statute.” Chevron, 467 U.S. at 843-

44.

“An agency is owed no deference if it has no delegated

authority from Congress to act.” N.Y. Stock Exch. LLC v. Secs. &

Exch. Comm’n, 962 F.3d 541, 553 (D.C. Cir. 2020); see also La.

Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986) (“[A]n

agency literally has no power to act . . . unless and until

Congress confers power upon it.”). Furthermore, “[a]gency

authority may not be lightly presumed,” and “[m]ere ambiguity in

a statute is not evidence of congressional delegation of

authority.” Michigan v. EPA, 268 F.3d 1075, 1082 (D.C. Cir.

2001) (citing Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d

640, 645 (D.C. Cir. 1998)). “Not only must an agency’s decreed

result be within the scope of its lawful authority, but the

26 process by which it reaches that result must be logical and

rational.” Michigan v. EPA, 576 U.S. 743, 750 (2015) (quoting

State Farm, 463 U.S. at 43).

The Court’s analysis begins with the statutory text. See S.

Cal. Edison Co. v. FERC, 195 F.3d 17, 22-23 (D.C. Cir. 1999).

Here, Section 1853 of the MSA explicitly provides that FMPs may

require that at-sea monitors “be carried on board a vessel of

the United States engaged in fishing for species that are

subject to the plan, for the purpose of collecting data

necessary for the conservation and management of the fishery.”

16 U.S.C. § 1853(a)(8). In the same section, the MSA provides

that FMPs may also “prescribe such other measures, requirements,

or conditions and restrictions as are determined to be necessary

and appropriate for the conservation and management of the

fishery.” Id. § 1853(a)(14). Significantly, the MSA also states

that each FMP “shall contain the conservation and management

measures” it finds are “necessary and appropriate for the

conservation and management of the fishery, to prevent

overfishing and rebuild overfished stocks, and to protect,

restore, and promote the long-term health and stability of the

fishery.” Id. § 1853(a)(1)(A).

Taken together, these statutory provisions “vest[] broad

authority in the Secretary to promulgate such regulations as are

necessary to carry out the conservation and management measures

27 of an approved FMP.” Nat’l Fisheries Inst., Inc. v. Mosbacher,

732 F. Supp. 210, 216 (D.D.C. 1990). Indeed, the Supreme Court

has recognized that the phrase “necessary and appropriate” is

“capacious[]” and “leaves agencies with flexibility.” Michigan,

576 U.S. at 752 (2015); see also Coastal Conservation Ass’n v.

U.S. Dep’t of Commerce, No. 15–1300, 2016 WL 54911, at *4 (E.D.

La. Jan. 5, 2016) (describing “necessary and appropriate” phrase

in Section 1853(a)(1)(A) as “empowering language represent[ing]

a delegation of authority to the agency”). Moreover, “the MSA

defines ‘conservation and management’ measures in relevant part

as ‘all of the rules, regulations, conditions, methods, and

other measures . . . required to rebuild, restore, or maintain,

and which are useful in rebuilding, restoring, or maintaining,

any fishery resource and the marine environment.’” Groundfish

Forum v. Ross, 375 F. Supp. 3d 72, 84 (D.D.C. 2019) (quoting 16

U.S.C. § 1802(5)). Given that the MSA expressly authorizes FMPs

to contain provisions requiring that vessels carry at-sea

monitors, as well any “necessary and appropriate” conservation

and management requirements, the Court declines to read the MSA

as narrowly as Plaintiffs urge. See 16 U.S.C. § 1853(a)(1)(A),

(b)(8), (b)(14); see also Groundfish Forum, 375 F. Supp. 3d at

84 (D.D.C. 2019) (finding that, given the “broad” definition of

“conservation and management” measures, “the Court has no basis

28 to recognize a strict yet unspoken limitation on the Service’s

authority”).

Plaintiffs, however, contend that, though the MSA

authorizes placement of at-sea monitors on vessels, the MSA is

silent on whether Defendants may further require that vessel

operators pay for the monitoring services. See Pls.’ Reply, ECF

No. 22 at 13. According to Plaintiffs, courts have rejected the

“nothing-equals-something argument,” based entirely on the

existence of the phrase “necessary and appropriate” in a

statute, “that presumed congressional silence left the agency a

‘mere gap’ . . . to fill.’” Pls.’ Reply, ECF No. 22 at 13

(quoting Gulf Fishermen’s Ass’n v. Nat’l Marine Fisheries Serv.,

968 F.3d 454, 460 (5th Cir. 2020)). Plaintiffs primarily rely on

the D.C. Circuit’s decision in New York Stock Exchange, LLC v.

SEC, 962 F.3d 541 (D.C. Cir. 2020), and the Supreme Court’s

decision in Michigan v. EPA, 576 U.S. 743 (2015), in support of

their argument. See Pls.’ Reply, ECF No. 22 at 19.

However, both cases are distinguishable. In New York Stock

Exchange, LLC, the D.C. Circuit concluded that the Securities

and Exchange Commission inappropriately relied on the phrase

“necessary and appropriate” under section 23(a) of the

Securities and Exchange Act in implementing a rule without any

regulatory agenda and without any other statutory authority. 962

F.3d at 557. The D.C. Circuit explained that the Commission had

29 adopted the program “without explaining what problems with the

existing regulatory requirements it meant to address.” Id.

Moreover, the costly program was adopted despite the Exchange

Act’s command “forbid[ding] the Commission from adopting a rule

that will unnecessarily burden competition.” Id. at 555. Here,

in contrast, Defendants have tethered the Omnibus Amendment

measures to the congressionally authorized purpose of

“conservation and management of the fishery.” 16 U.S.C. §

1853(b)(8). For example, the record reflects that Defendants

considered the economic impacts to the fishing community as well

as the environmental impacts, concluding that the preferred

alternatives “may lead to direct positive impacts on the herring

resource and non-target species if herring fishing effort is

limited, by increased information on catch tracked against catch

limits, and that increases the reproductive potential of the

herring resource and non-target species.” AR 17318.

Similarly, in Michigan, the Supreme Court concluded that,

among other things, the “established administrative practice” to

“treat cost as a centrally relevant factor” and the “[s]tatutory

context” requiring consideration of costs in reference to

various actions, made it unreasonable for the EPA to read the

phrase “appropriate and necessary” to mean that it could ignore

cost when deciding whether to regulate power plants. 576 U.S. at

752-57. Here, however, the established administrative practice

30 and statutory context both favor Defendants. First, as

Plaintiffs concede, since 1990, the North Pacific Council has

managed an observer program that is “funded through a

combination of fees and third-party contracts between observer

providers and fishing industry members.” Pls.’ Mot., ECF No. 18-

1 at 35. Second, regarding the statutory context, in addition to

the provision explicitly authorizing mandatory at-sea monitors,

the MSA recognizes the existence of an at-sea monitoring program

in which a vessel may hire and directly provide payment for

monitoring services. In Section 1858(g), the MSA authorizes the

Commerce Secretary to issue sanctions “[i]n any case in which .

. . any payment required for observer services provided to or

contracted by an owner or operator . . . has not been paid and

is overdue.” 16 U.S.C. § 1858(g)(1) (emphasis added). “This

provision would be unnecessary if the MSA prohibited the very

type of industry funding at issue in this case.” See Goethel v.

Pritzker, No. 15-cv-497, 2016 WL 4076831, at *5 (D.N.H. July 29,

2016) (finding that Section 1858(g) “demonstrates beyond

peradventure that the MSA contemplates—and most certainly does

not prohibit—the use of industry funded monitors”). And while

Plaintiffs argue that Section 1858(g) must only refer to other

provisions of the MSA establishing fee-based monitoring

programs, see Pls.’ Mot., ECF No. 18-1 at 36-37 (citing 16

U.S.C. §§ 1862, 1821(h)(4), 1853a(e)(2)); Plaintiffs’ argument

31 lacks a textual basis. Moreover, by mandating that conservation

and management measures, where practicable, “minimize costs” and

“minimize adverse economic impacts” on fishing communities, the

MSA acknowledges that such measures may result in costs to the

fishing industry. See 16 U.S.C. § 1851(a)(7), (8).

The Court is mindful that “the mere reference to

‘necessary’ or ‘appropriate’ in a statutory provision

authorizing an agency to engage in rulemaking does not afford

the agency authority to adopt regulations as it sees fit with

respect to all matters covered by the agency’s authorizing

statute.” N.Y. Stock Exch. LLC, 962 F.3d at 554 (citing

Michigan, 576 U.S. at 749-51). But, as demonstrated above, the

MSA contains more than only the phrase “necessary and

appropriate.”

Plaintiffs further argue that certain canons of statutory

interpretation demonstrate that Defendants have exceeded their

authority. First, Plaintiffs invoke the anti-surplusage canon,

“which encourages courts to give effect to ‘all of [a statute’s]

provisions, so that no part will be inoperative or superfluous,

void or insignificant.’” Gulf Fishermen’s Ass’n, 968 F.3d at

464-65 (quoting Latiolais v. Huntington Ingalls, Inc., 951 F.3d

286, 294 (5th Cir. 2020) (en banc)). Plaintiffs contend that if

Congress had intended to grant Defendants “implied authority” to

require industry-funded monitoring, it would not have

32 specifically authorized the collection of fees or surcharges to

cover the cost of three monitoring programs elsewhere in the

statute. See Pls.’ Mot., ECF No. 18-1 at 29-30. Plaintiffs

specifically refer to: (1) the “limited access privilege

program,” which authorizes the Council to collect “fees” to

“cover the costs of management, data collection and analysis,

and enforcement activities,” 16 U.S.C. § 1853a(e)(2); (2) the

monitoring program for foreign fishing vessels, which authorizes

the Secretary to impose a “surcharge” to “cover all the costs of

providing a United States observer aboard that vessel,” id. §

1821(h)(4); and (3) the North Pacific Council program, which

“establishes a system . . . of fees, which may vary by fishery,

management area, or observer coverage level, to pay for the cost

of implementing the plan,” id. § 1862(a). Second, Plaintiffs

argue that the expressio unius est exclusio alterius canon

applies for the same reasons: that the inclusion of provisions

governing fee-based monitoring programs impliedly excludes other

types of industry-funded monitoring programs. Pls.’ Mot., ECF

No. 18-1 at 30; see also Pls.’ Reply, ECF No. 22 at 14.

The Court is unpersuaded. A fee-based program—“where the

industry is assessed a payment by the agency, authorized by

statute, to be deposited in the U.S. Treasury and disbursed for

administrative costs otherwise borne by the agency,” AR 17739—is

different from the industry-funded observer measures at issue

33 here, in which the fishing vessels contract with and make

payments directly to third-party monitoring service providers.

Because the Omnibus Amendment does not involve fees or

surcharges, the Court cannot not find that the MSA’s provisions

governing cost recovery are made “superfluous, void or

insignificant,” Citizens for Responsibility & Ethics in Wash. v.

FEC, 316 F. Supp. 3d 349, 391 (D.D.C. 2018) (quoting Rubin v.

Islamic Republic of Iran, 138 S. Ct. 816, 824 (2018)); nor do

the circumstances “support a sensible inference that the term

left out must have been meant to be excluded.” Del. Riverkeeper

Network v. FERC, 857 F.3d 388, 398 (D.C. Cir. 2017) (citing

N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017)); see also

Goethel, 2016 WL 4076831, at *5 (finding that “the Pacific

Northwest fee mechanism is a substantively different animal than

A16’s industry funding requirement for at-sea monitoring”).

Plaintiffs also assert that “[t]here is no evidence of

congressional recognition of any sort of pre-existing, implied

authority to impose monitoring costs on the regulated industry.”

Pls.’ Mot., ECF No. 18-1 at 31. The Court disagrees. Rather, the

legislative history further supports the conclusion that

Defendants have acted within the scope of the MSA.

As Defendants point out, prior to Congress adding to the

MSA the provisions authorizing the mandatory placement of at-sea

monitors on fishing vessels (16 U.S.C. § 1853(b)(8)) and the

34 fee-based observer program in the North Pacific region (16

U.S.C. § 1862), the Secretary had issued regulations

implementing an observer program in the North Pacific’s FMP in

which the vessel operator directly paid a third-party monitoring

services provider. See Groundfish of the Gulf of Alaska,

Groundfish Fishery of the Bering Sea & Aleutian Islands Area, 55

Fed. Reg. 4839-02, 4840 (Feb. 12, 1990) (providing that “[a]ny

vessel operator or manager of a shoreside processing facility

who is required to accommodate an observer is responsible for

obtaining a NMFS-certified observer . . . . [and] will pay the

cost of the observer directly to the contractor” (emphasis

added)). As Plaintiffs acknowledge, to this day, “the North

Pacific observer program is still funded through a combination

of fees and third-party contracts between observer providers and

fishing industry members.” Pls.’ Mot., ECF No. 18-1 at 35.

Congress was thus aware of the industry-funded monitoring

program in the North Pacific when it authorized the at-sea

monitoring requirement located in Section 1853(b)(8), and,

indeed, the Committee on Merchant Marine and Fisheries noted

that “the Councils already have—and have used—such authority;

the amendment makes the authority explicit.” See Defs.’ Opp’n,

ECF No. 20-1 at 31-32 (quoting Comm. on Merchant Marine &

Fisheries, H.R. Rep. No. 101-393 at 38 (1990)). Congressional

committees have continued to take note of such industry-funded

35 programs. See, e.g., S. Rep. No. 114-66 at 31-32 (June 16,

2015); S. Rep. No. 114-239 at 31-32 (Apr. 21, 2016); H. Rpt. No.

114-605 at 17 (June 7, 2016); S. Rep. No. 115-139 at 34 (July

27, 2017); S. Rep. No. 115-275 at 36 (June 14, 2018); S. Rpt.

No. 116-127 at 42 (Sept. 26, 2019).

Accordingly, the Court concludes that Defendants acted

within the bounds of their statutory authority in promulgating

the Omnibus Amendment. Even if Plaintiffs’ arguments were enough

to raise an ambiguity in the statutory text, the Court, for the

same reasons identified above, would conclude that Defendants’

interpretation is a reasonable reading of the MSA. See

Groundfish Forum, 375 F. Supp. 3d at 85.

C. Industry-Funded Monitoring Does Not Violate Agency Financing and Expenditure Statutes

Plaintiffs next argue that the Omnibus Amendment “impliedly

repeals” the Anti-Deficiency Act, 31 U.S.C. § 1341; the

Miscellaneous Receipts Statute, 31 U.S.C. § 3302; and the

Independent Offices Appropriations Act, 31 U.S.C. § 9701. Pls.’

Mot., ECF No. 18-1 at 38-40. According to Plaintiffs, the

amendment inappropriately “offload[s] costs” of Defendants’

observer programs onto the industry when Defendants exceed

appropriated funds. Id. at 39. For the reasons stated below, the

Court disagrees and concludes that the industry-funded

36 monitoring requirement does not violate the statutes governing

agency expenditures and obligations.

Plaintiffs first argue that the industry-funded monitoring

requirement violates the Anti-Deficiency Act, 31 U.S.C. § 1341.

Pls.’ Mot., ECF No. 18-1 at 38. The Anti–Deficiency Act provides

that a federal officer may not “(A) make or authorize an

expenditure or obligation exceeding an amount available in an

appropriation or fund for the expenditure or obligation”; or

“(B) involve [the] government in a contract or obligation for

the payment of money before an appropriation is made unless

authorized by law.” 31 U.S.C. § 1341(a)(1)(A)-(B). Here,

however, Defendants are not expending government funds without

authorization from Congress. Nor do the monitoring requirements

contemplate that NFMS will enter into any contracts or

obligations for the payment of money. Rather, it is the vessels

that directly make payments to the monitoring service providers,

subject to any terms provided for in contracts between the two

private parties. Accordingly, based upon the statute’s plain

language, Defendants have not violated the Anti-Deficiency Act.

See Goethel, 2016 WL 4076831, at *6 (holding that an industry

funding requirement did not violate the Anti-Deficiency Act

because “the effect of industry funding is a cessation of

government spending”).

37 Plaintiffs also contend that the monitoring requirement

violates the Miscellaneous Receipts Act, 31 U.S.C. § 3302, which

provides that “an official or agent of the Government receiving

money for the Government from any source shall deposit the money

in the Treasury as soon as practicable without deduction for any

charge or claim.” 31 U.S.C. § 3302(b). The D.C. Circuit has

explained that this provision “derives from and safeguards a

principle fundamental to our constitutional structure, the

separation-of-powers precept embedded in the Appropriations

Clause, that ‘[n]o Money shall be drawn from the Treasury, but

in Consequence of Appropriations made by Law.’” Scheduled

Airlines Traffic Offs., Inc. v. U.S. Dep’t of Def., 87 F.3d

1356, 1361-62 (D.C. Cir. 1996) (quoting U.S. Const. art. I, § 9,

cl. 7). “By requiring government officials to deposit government

monies in the Treasury, Congress has precluded the executive

branch from using such monies for unappropriated purposes.” Id.

at 1362. Here, the service providers are not government

officials and do not otherwise receive money for the government,

and thus industry-funded monitoring does not involve an

“official or agent of the Government” receiving money. See

Carver v. United States, 16 Ct. Cl. 361, 381 (1880) (“The

Treasurer is the official custodian [of public money] for

Congress, and unless money is in his custody, or in the hands of

the persons authorized by law to receive it on behalf of the

38 United States, it is not in the possession of the United

States.”), aff’d, 111 U.S. 609 (1884). Under the Omnibus

Amendment, the vessels pay the monitoring service providers for

services rendered under contracts between the vessels and the

service providers. “Mindful of both the plain language of the

Miscellaneous Receipts statute and its underlying purpose to

preserve congressional control of the appropriations power,”

Scheduled Airlines Traffic Offs., Inc., 87 F.3d at 1362; the

Court concludes that the statute is not implicated.

Plaintiffs next argue that the industry funding

requirements of the Omnibus Amendment violate the Independent

Offices Appropriations Act (“IOAA”), 31 U.S.C. § 9701, which

“generally governs user fees collected by the federal

government.” Seafarers Int’l Union of N. Am. v. U.S. Coast

Guard, 81 F.3d 179, 181 n.1 (D.C. Cir. 1996). “Under the Act,

the ‘head of each agency . . . may prescribe regulations

establishing the charge for a service or thing of value provided

by the agency.’” Montrois v. United States, 916 F.3d 1056, 1062

(D.C. Cir. 2019) (quoting 31 U.S.C. § 9701(b)). Here, Defendants

are not collecting a fee from any party related to industry-

funded monitoring, and Defendants are not providing a “service

or thing of value.” 31 U.S.C. § 9701(b). As Defendants point

out, instead, “a private entity (a monitoring provider) collects

a vessel’s payment for the service provider’s at-sea monitoring,

39 an arrangement under which no government agent or official ever

has custody or possession of any public money.” Defs.’ Opp’n,

ECF No. 20-1 at 47. Accordingly, the Court concludes that

industry-funded monitoring does not violate the IOAA.

Despite the above, Plaintiffs assert that it is “a

distinction without a difference” that “Defendants and the

Council seek to require the industry to contract directly with

monitoring service providers, in lieu of the government paying

those companies.” Pls.’ Reply, ECF No. 22 at 29. According to

Plaintiffs, “the law looks past superficial structures to the

heart of what an agency is trying to accomplish.” Id. The Court

is unpersuaded. First, Plaintiffs fail to specify to which “law”

they are referring, and they fail to cite any case law in

support of their argument. Second, the plain language of the

three statutes unambiguously demonstrates that they are not

applicable to this case. See Nat’l Cable Television Ass’n, Inc.

v. United States, 415 U.S. 336, 342 (1974) (cautioning that the

IOAA should be read “narrowly to avoid constitutional

problems”); Davis & Assocs., Inc. v. District of Columbia, 501

F. Supp. 2d 77, 80 (D.D.C. 2007) (“The relevant language of the

Anti–Deficiency Act is unambiguous.”); AINS, Inc. v. United

States, 56 Fed. Cl. 522, 539 (2003) (“All the [Miscellaneous

Receipts] Act literally requires is that miscellaneous money

received by government officials be deposited in the general

40 Treasury.”); see also Estate of Cowart v. Nicklos Drilling Co.,

505 U.S. 469, 475 (1992) (“[W]hen a statute speaks with clarity

to an issue[,] judicial inquiry into the statute’s meaning, in

all but the most extraordinary circumstance, is finished.”).

Plaintiffs also argue that “it is incorrect for Defendants

to assert that NMFS does not closely ‘control’ monitoring

service providers or the contractual relationships they enter

with vessel owners” because: (1) “the market for monitoring

service providers is highly regulated and controlled by NMFS”;

(2) “NMFS must certify the companies permitted to provide

monitors,” of which there are only four such companies; and (3)

of the certified companies, “[n]ot all these companies operate

in the same geographic regions.” Pls.’ Reply, ECF No. 22 at 29.

However, none of these details regarding Defendants’ regulation

and oversight of the required standards set by the Council

change the fact that Defendants do not receive any payments

related to industry-funded monitoring and do not “maintain

control over the contractual relationship between the vessel and

the service provider that the vessel itself selects.” Defs.’

Reply, ECF No. 26 at 23.

Accordingly, industry-funded monitoring does not violate

the Anti-Deficiency Act, the Miscellaneous Receipts Act, or the

IOAA.

41 D. The Omnibus Amendment Is Not an Unconstitutional Tax

Plaintiffs argue that the industry-funded monitoring

measures—which they characterize as “a government program

created by the NEFMC and Defendants, regulated by them in

detail, and which they will continue to fund in-part

themselves”—are an unconstitutional tax. See Pls.’ Mot., ECF No.

18-1 at 40. Defendants disagree with Plaintiffs’

characterization of the industry-funded monitoring requirement

and contend that there is “no resemblance” between the industry-

funded monitoring requirement and a tax levied and collected by

Congress. See Defs.’ Opp’n, ECF No. 20-1 at 49. The Court agrees

with Defendants.

“A payment made to a third party vendor (in this case, an

at-sea monitor) is not a tax simply because the law requires

it.” Goethel, 2016 WL 4076831, at *6. As the Supreme Court has

explained, the “essential feature” of a tax is that it “produces

at least some revenue for the Government.” Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 564 (2012); see also Black’s Law

Dictionary (11th ed. 2019) (defining “tax” as “a charge,

[usually] monetary, imposed by the government on persons,

entities, transactions or property to yield public revenue”).

Here, it is undisputed that the payment for industry-funded

monitoring flows from the vessels directly to the monitoring

service providers. See Pls.’ Mot., ECF No. 18-1 at 40; Defs.’

42 Opp’n, ECF No. 20-1 at 46-47. The government receives no funds

related to the requirement, nor are the funds available to the

government to be expended for any public purpose. And the

government’s role is limited to approving at-sea monitors

employed by private companies to serve as the monitoring service

providers.

Accordingly, because industry-funded monitoring generates

no public revenue, it does not constitute an unlawful tax.

E. The Omnibus Amendment Does Not Violate National Standard 7 and National Standard 8

Plaintiffs contend that the Omnibus Amendment violates

National Standards 7 and 8 because any demonstrated scientific

or conservation benefits resulting from increased monitoring

services do not outweigh the economic consequences to the

fishing community. Pls.’ Mot., ECF No. 18-1 at 41.

In reviewing the Omnibus Amendment, the Court’s “task is

not to review de novo whether the amendment complies with [the

National Standards] but to determine whether the Secretary’s

conclusion that the standards have been satisfied is rational

and supported by the record.” C&W Fish Co., 931 F.2d at 1562.

For the reasons explained below, the Court concludes that

the Omnibus Amendment does not violate National Standards 7 and

8.

43 1. National Standard 7

National Standard 7 provides that “[c]onservation and

management measures shall, where practicable, minimize costs and

avoid unnecessary duplication.” 16 U.S.C. § 1851(a)(7). The

regulations concerning National Standard 7 instruct that

management measures should not impose “unnecessary burdens on

the economy, on individuals, on private or public organizations,

or on Federal, state, or local governments. Factors such as fuel

costs, enforcement costs, or the burdens of collecting data may

well suggest a preferred alternative.” 50 C.F.R. § 600.340(b).

“Any analysis for fishery management plans ‘should demonstrate

that the benefits of fishery regulation are real and substantial

relative to the added research, administrative, and enforcement

costs, as well as costs to the industry of compliance.’” Burke

v. Coggins, No. 20-667, 2021 WL 638796, at *5 (D.D.C. Feb. 18,

2021) (quoting 50 C.F.R. § 600.340(c)). The regulations also

provide that “an evaluation of effects and costs, especially of

differences among workable alternatives, including the status

quo, is adequate.” 50 C.F.R. § 600.340(c).

Plaintiffs first argue that “[a]t a cost upwards of $710

per day, many small business herring fishermen will suffer

severe economic consequence.” Pls.’ Mot., ECF No. 18-1 at 41.

Plaintiffs contend that “[a]t no point did Defendants justify

44 the Omnibus Amendment by describing less costly alternatives

that the NEFMC seriously considered.” Id. at 42.

The administrative record reflects, however, that

Defendants did consider less costly alternatives and included

exemptions to the amendment to minimize costs. NMFS recognized

that while industry-funded monitoring coverage would cause

“direct economic impacts” on vessels participating in the

herring fishery, the requirement also would have positive

impacts, including ensuring “(1) [a]ccurate estimates of catch

(retained and discarded); (2) accurate catch estimates for

incidental species for which catch caps apply; and (3)

affordable monitoring for the herring fishery.” AR 17740, 17744.

The record also demonstrates that Defendants considered

alternatives to determine which monitoring target goal would

best achieve the agency’s goals while minimizing the economic

impact on fishing communities. The analysis within the EA

indicates Defendants considered a “no coverage target,” a 25%

coverage target, a 50% coverage target, and a 75% coverage

target. AR 17075, 17082-83; see also id. at 17097 (“Different

coverage targets (25%, 50%, 75%, or 100%) were analyzed for each

gear type (midwater trawl, purse seine, bottom trawl), but the

Council selected a 50% coverage target for all gear types.”).

After weighing the benefits against the costs, Defendants

concluded that “[t]he 50% coverage target selected by the

45 Council for vessels with a Category A or B herring permit

provides for the benefits of collecting additional information

on biological resources while minimizing industry cost

responsibilities, especially when compared to non-preferred

coverage targets of 100% and 75%.” Id. at 17315.

The Omnibus Amendment also provides for exemptions from the

coverage requirements to minimize costs where practicable. For

example, waivers are available if: (1) “monitoring coverage is

unavailable”; (2) “vessels intend to land less than 50 metric

tons (mt) of herring”; or (3) “wing vessels carry no fish on

pair trawling trips.” Id. at 17735. Furthermore, the EFP

“exempt[s] midwater vessels from the requirement for industry-

funded at-sea monitoring coverage and allow[s] midwater trawl

vessels to use electronic monitoring and portside sampling

coverage to comply with the” 50% monitoring coverage target. Id.

at 17736-37. Finally, Defendants found that “[a]llowing SBRM

coverage to contribute toward the 50-percent coverage target for

at-sea monitoring is expected to reduce costs for the industry.”

Id. at 17742. Accordingly, Plaintiffs’ contention that

Defendants “at no point” discussed less costly alternatives is

belied by the record. See Nat’l Coal. for Marine Cons. v. Evans,

231 F. Supp. 2d 119, 133 (D.D.C. 2002) (dismissing plaintiffs’

arguments that NMFS failed to analyze alternative conservation

measures, explaining that they “ha[d] not specified any record

46 evidence showing that NMFS ignored a less costly, practicable

approach . . . , as National Standard Seven prohibits”).

Plaintiffs, however, argue that Defendants’ discussion of

alternatives is conclusory and that “[m]ore detailed analysis is

required, particularly when the proposed regulation will harm

most of the herring fleet.” Pls.’ Reply, ECF No. 22 at 32.

Plaintiffs assert that the Council failed to note that midwater

trawlers will bear the brunt of the industry-funded monitoring

costs because: (1) they have low observer coverage rates due to

differences in SBRM coverage among gear types; and (2) the

majority of them would not qualify under the 50-metric-ton

exemption. Id. However, it is settled law that “in making a

decision on the practicability of a fishery management

amendment, the Secretary does not have to conduct a formal

cost/benefit analysis of the measure.” Alaska Factory Trawler

Ass’n v. Baldridge, 831 F.2d 1456, 1460 (9th Cir. 1987); see

also Nat’l Fisheries, 732 F. Supp. at 222. As stated above,

there is ample evidence in the record that Defendants considered

the costs and benefits of choosing a 50% coverage target, which

was neither the most nor the least severe plan considered, and

took action to minimize the economic impacts of the industry-

funded monitoring measures. E.g., AR at 17005-06, 17030, 17070-

71, 17075, 17082-83, 17315, 17346. In addition, the record

reflects that Defendants made efforts to minimize the economic

47 impacts by tailoring the industry-funded monitoring requirement

to that portion of the industry most in need of regulatory

controls. Thus, though Plaintiffs assert that midwater trawls

will end up bearing a greater share of the costs, as Defendants

assert, the monitoring coverage target is intended to encompass

those vessels with the largest herring catch. See e.g., id. at

17742 (“Coverage waivers would only be issued under specific

circumstances, when monitors are unavailable or trips have

minimal to no catch, and are not expected to reduce the benefits

of additional monitoring.” (emphasis added)); id. at 17743

(“Ultimately, the Council determined that the potential for a

relatively high herring catches per trip aboard those vessels

warranted additional monitoring.”). Furthermore, in view of the

fact that these midwater trawl vessels would be less likely to

fall under the 50-metric-ton exception, Defendants found that,

via the EFP exemption, “[e]lectronic monitoring and portside

sampling may be a more cost effective way for midwater trawl

vessels to meet the 50-percent coverage target requirement than

at-sea monitoring coverage.” Id. at 17742.

Plaintiffs also contend that the omnibus measures, which

establish a standardized process for developing industry-funded

monitoring programs across other New England FMPs, “may lead to

the sort of ‘duplication’ that National Standard Seven aims to

avoid” because “vessels in non-herring fisheries could become

48 subject to concurrent monitoring requirements.” Pls.’ Reply, ECF

No. 22 at 30. Plaintiffs assert that the Omnibus Amendment fails

to address this potential future duplication with other NEFMC-

administered fisheries. Id. at 30-31. But Plaintiffs’ argument

fails. Defendants explained that “[b]ecause herring and mackerel

are often harvested together on the same trip,” the Omnibus

Amendment “specifies that the higher coverage target applies on

trips declared into both fisheries. If the Council considers

industry-funded monitoring in other fisheries in the future, the

impacts of those programs relative to existing industry-funded

monitoring programs will be considered at that time.” AR 17742.

Further, because the 50% monitoring coverage target is

calculated by combining both SBRM and industry-funded

monitoring, a vessel will not have SBRM and industry-funded

monitoring coverage on the same trip. See id. at 17315, 17734.

Thus, the industry-funded monitoring requirement in the Atlantic

herring fishery “avoid[s] unnecessary duplication.” 16 U.S.C. §

1851(a)(7).

Accordingly, the Omnibus Amendment does not violate

National Standard 7.

2. National Standard 8

National Standard 8 requires that FMPs and plan amendments

“take into account the importance of fishery resources to

fishing communities . . . in order to (A) provide for the

49 sustained participation of such communities, and (B) to the

extent practicable, minimize adverse economic impacts on such

communities.” 16 U.S.C. § 1851(a)(8). The agency “must give

priority to conservation measures.” Nat. Res. Def. Council, Inc.

v. Daley, 209 F.3d 747, 753 (D.C. Cir. 2000). “It is only when

two different plans achieve similar conservation measures that

the [Department] takes into consideration adverse economic

consequences.” Id. But where two alternatives in fact achieve

similar conservation goals, the preferred option will be the

alternative that provides the greater potential for sustained

participation of fishing communities and that minimizes adverse

economic impacts. See 50 C.F.R. § 600.345(b)(1). “These

sometimes conflicting goals of conservation on the one hand and

minimizing harm to fishing communities on the other mean that

the Secretary has substantial discretion to strike what he deems

an appropriate balance.” N.C. Fisheries Ass’n, 518 F. Supp. 2d

at 92 (citing Alliance Against IFQs v. Brown, 84 F.3d 343, 350

(9th Cir. 1996)). “In striking that balance, moreover, the

Secretary need not conduct an official or numerical cost/benefit

analysis.” Id. (citing Nat'l Fisheries Inst., 732 F. Supp. at

222).

Plaintiffs argue that the Omnibus Amendment violates

National Standard 8 because Defendants have failed to establish

its scientific and conservation need. Pls.’ Reply, ECF No. 22 at

50 34; see also Pls.’ Mot., ECF No. 18-1 at 41. The Court

disagrees. It is clear from the administrative record that

Defendants explained the scientific and conservation benefits of

the Omnibus Amendment. Defendants explained that the amendment

establishes industry-funded monitoring “to help increase the

accuracy of catch estimates,” which in turn will “improv[e]

catch estimation for stock assessments and management.” AR 17742

(“Analysis in the EA suggests a 50-percent coverage target would

reduce the uncertainty around estimates of catch tracked against

catch caps, likely resulting in a CV of less than 30 percent for

the majority of catch caps.”); see also id. at 17316. “If

increased monitoring reduces the uncertainty in the catch of

haddock and river herring and shad tracked against catch caps,

herring vessels may be more constrained by catch caps, thereby

increasing accountability, or they may be less constrained by

catch caps and better able to fully harvest herring sub-ACLs.”

Id. at 17742; see also id. at 17789. Furthermore, Defendants

explained that “[i]mproving [the] ability to track catch against

catch limits is expected to support the herring fishery achieve

optimum yield, minimize bycatch and incidental catch to the

extent practicable, and support the sustained participation of

fishing communities.” Id. at 17742; see also id. at 17789-90. As

explained above, those conservation needs were weighed against

the associated costs to the industry, and the Council considered

51 significant alternatives and selected measures to minimize

adverse economic impacts on the fishing industry and

communities. See id. at 17316.

Plaintiffs also argue that the cost-minimization efforts

“impermissibly benefit a select number of fishing communities

where that sliver of the fleet berths and does business.” Pls.’

Reply, ECF No. 22 at 34. Plaintiffs further contend that

“differences in SBRM coverage among different gear types will

lead to the midwater trawl fleet carrying more of the financial

burden in meeting the herring monitoring coverage target.” Id.

But, as stated above, the administrative record demonstrates

that Defendants took into account the negative economic impacts

upon participants in the herring fishery “to the extent

practicable.” 16 U.S.C. § 1851(a)(8). In taking into account the

economic impacts, Defendants weighed the alternatives and

reasonably concluded that the 50% monitoring coverage target

best met the balance of the costs and benefits of additional

monitoring. AR 17257, 17734.

“[C]ourts have consistently rejected challenges under this

standard where the administrative record reveals that the

Secretary was aware of potentially devastating economic

consequences, considered significant alternatives, and

ultimately concluded that the benefits of the challenged

regulation outweighed the identified harms.” N.C. Fisheries

52 Ass’n, 518 F. Supp. 2d at 92 (citing cases). Accordingly, the

Court concludes that there is no violation of National Standard

Eight.

F. The February 7, 2020 Final Rule Is Not Substantively Deficient

Plaintiffs argue that Defendants’ responses to comments

submitted in connection with the final rule were “substantively

deficient.” Pls.’ Mot., ECF No. 18-1 at 43.

“The APA’s arbitrary-and-capricious standard requires that

agency rules be reasonable and reasonably explained.” Nat’l Tel.

Coop. Ass’n v. FCC, 563 F.3d 536, 540 (D.C. Cir. 2009). “An

agency violates this standard if it ‘entirely fail[s] to

consider an important aspect of the problem.’” Carlson v. Postal

Reg. Comm’n, 938 F.3d 337, 344 (D.C. Cir. 2019) (quoting State

Farm, 463 U.S. at 43). “An agency also violates this standard if

it fails to respond to ‘significant points’ and consider ‘all

relevant factors’ raised by the public comments.” Id. (quoting

Home Box Office, Inc. v. FCC, 567 F.2d 9, 35–36 (D.C. Cir.

1977)). “The fundamental purpose of the response requirement is,

of course, to show that the agency has indeed considered all

significant points articulated by the public.” Nat. Res. Def.

Council, Inc. v. EPA, 859 F.2d 156, 188 (D.C. Cir. 1988).

However, “[t]he failure to respond to comments is significant

only insofar as it demonstrates that the agency’s decision was

53 not based on a consideration of the relevant factors.” Thompson

v. Clark, 741 F.2d 401, 409 (D.C. Cir. 1984) (internal

quotations and citations omitted).

First, Plaintiffs argue that Defendants’ failed to cite

statutory authority supporting its statement that Section

1853(b)(8)’s requirement “to carry observers . . . includes

compliance costs on industry participants” because “there is no

statutory authorization for industry-funded monitoring.” Pls.’

Mot., ECF No. 18-1 at 43 (emphasis omitted) (quoting AR 17739).

Plaintiffs contend that Defendants never addressed the argument

that if authorization for industry-funded monitoring were

“implied, then Congress’s efforts to allow it elsewhere would be

rendered surplusage.” Id.

However, the Service explained in its response that its

authority derives from Section 1853(b)(8) of the MSA, which

authorizes at-sea monitors to be placed on fishing vessels, and

explained its view that “[t]he requirement to carry observers,

along with many other requirements under the [MSA], includes

compliance costs on industry participants.” AR 17739 (explaining

that “NMFS regulations require fishing vessels to install vessel

monitoring systems for monitoring vessel positions and fishing,

report catch electronically, fish with certain gear types or

mesh sizes, or ensure a vessel is safe before an observer may be

carried on a vessel. Vessels pay costs to third-parties for

54 services or goods in order to comply with these regulatory

requirements that are authorized by the Magnuson-Stevens Act.

There are also opportunity costs imposed by restrictions on

vessel sizes, fish sizes, fishing areas, or fishing seasons.”).

Defendants’ response is not “substantively deficient” for

failing to expressly mention the surplusage canon, as Defendants

had already noted their disagreement with the premise that

industry-funded monitoring was unauthorized. Cf. Del. Dep’t of

Nat. Res. & Env’t Control v. EPA, 785 F.3d 1, 15 (D.C. Cir.

2015) (stating that an agency need not “discuss every item of

fact or opinion included in the submissions made to it”

(citation omitted)).

Plaintiffs also assert that “there is a key distinction

between regulatory costs—often enumerated by statute—and

effectively paying the salary of your direct, government

minder.” Pls.’ Mot., ECF No. 18-1 at 43-44. Plaintiffs contend

that the measures within the Omnibus Amendment are more

comparable to inspection costs than compliance costs. Id. at 44.

Finally, Plaintiffs argue that Defendants “tried to dismiss

arguments that industry funding is an unlawful tax.” Id. at 45.

However, Defendants also sufficiently responded to these

concerns raised in submitted comments. Defendants explained that

the purpose of monitoring programs was to “collect[] data

necessary for the conversation and management of the fishery”

55 and that “[a]t-sea monitors are not authorized officers

conducting vessel searches for purposes of ensuring compliance

with fisheries requirements.” AR 17740. Defendants further

explained that industry funding is not a tax because the

government receives no revenue. Id.

Accordingly, the Court concludes that the record indicates

that Defendants sufficiently considered the relevant factors

raised by the submitted comments and provided reasonable

explanations in response. See Nat’l Tel. Coop. Ass’n, 563 F.3d

at 540.

G. Defendants Did Not Violate NEPA

Plaintiffs further argue that Defendants’ EA violates NEPA.

See Pls.’ Mot., ECF No. 18-1 at 46.

While NEPA establishes a “national policy [to] encourage

productive and enjoyable harmony between man and his

environment,” 42 U.S.C. § 4321; “NEPA itself does not mandate

particular results,” Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 350 (1989). “Rather, NEPA imposes only

procedural requirements on federal agencies with a particular

focus on requiring agencies to undertake analyses of the

environmental impact of their proposals and actions.” Dep’t of

Transp. v. Public Citizen, 541 U.S. 752, 756–57 (2004). In

reviewing an agency’s decision not to issue an EIS, the court’s

role is a “‘limited’ one, designed primarily to ensure ‘that no

56 arguably significant consequences have been ignored.’” Taxpayers

of Mich. Against Casinos v. Norton [“TOMAC”], 433 F.3d 852, 860

(D.C. Cir. 2006) (quoting Pub. Citizen v. Nat’l Highway Traffic

Safety Admin., 848 F.2d 256, 267 (D.C. Cir. 1988)). Thus, courts

apply “a ‘rule of reason’ to an agency’s NEPA analysis” and

decline to “‘flyspeck’ the agency’s findings in search of ‘any

deficiency no matter how minor.’” Myersville Citizens for a

Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322–23 (D.C. Cir.

2015) (quoting Nevada v. U.S. Dep’t of Energy, 457 F.3d 78, 93

(D.C. Cir. 2006)).

Plaintiffs argue that Defendants violated NEPA because: (1)

Defendants failed to take a “hard look” at the Omnibus

Amendment’s impacts; (2) Defendants did not adequately consider

regulatory alternatives or potential mitigation measures; (3)

Defendants did not seriously consider alternatives to industry-

funded monitoring; and (4) Defendants did not submit a

supplement to their environmental impact analysis despite

reductions in herring catch. See Pls.’ Mot., ECF No. 18-1 at 46-

51. For the reasons explained below, the Court rejects

Plaintiffs’ arguments.

1. Plaintiffs Do Not Have a Cause of Action Under NEPA

As a threshold matter, the Court first addresses whether

Plaintiffs’ interests fall within NEPA’s “zone of interests.”

57 Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 273 (D.C. Cir.

2015).

“In addition to constitutional standing, a plaintiff must

have a valid cause of action for the court to proceed to the

merits of its claim.” Id. (citing Natural Res. Def. Council v.

EPA, 755 F.3d 1010, 1018 (D.C. Cir. 2014)). As the Supreme Court

has explained, courts “presume that a statutory cause of action

extends only to plaintiffs whose interests ‘fall within the zone

of interests protected by the law invoked.’” Lexmark Int'l, Inc.

v. Static Control Components, Inc., 572 U.S. 118, 129 (2014)

(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

“The zone of interests protected by the NEPA is, as its

name implies, environmental; economic interests simply do not

fall within that zone.” Gunpowder Riverkeeper, 807 F.3d at 274.

“To be sure, a [party] is not disqualified from asserting a

claim under the NEPA simply because it has an economic interest

in defeating a challenged regulatory action.” Id. (citing Realty

Income Trust v. Eckerd, 564 F.2d 447, 452 (D.C. Cir. 1977). But

a party “must assert an environmental harm in order to come

within the relevant zone of interests,” and that zone of

interests “does not encompass monetary interests alone,” id.

(quoting Eckerd, 564 F.2d at 452 & n.10, n.11).

Here, while Plaintiffs refer generally to unspecified

“environmental impacts,” Plaintiffs have not alleged that they

58 will suffer any environmental injury as a result of the Omnibus

Amendment. Rather, Plaintiffs’ sole concern is with the

financial burden on fishing vessels and companies as a result of

industry-funded monitoring. In their motion briefing and in

their Complaint, Plaintiffs have detailed their fears regarding

the economic impact of the Omnibus Amendment. See, e.g., Pls.’

Mot., ECF No. 18-1 at 48-51; Pls.’ Reply, ECF No. 22 at 36-42;

Compl., ECF No. 1 ¶¶ 3-5, 45, 78-80, 86, 91, 98. However,

Plaintiffs have failed to name any specific harms to the

environment and have not “linked [their] pecuniary interest to

the physical environment or to the environmental impacts.”

Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 940 (9th

Cir. 2005) (holding that plaintiff failed to establish

prudential standing under NEPA because plaintiff’s “sole

interest is in selling phosphate to Agrium”).

Accordingly, because Plaintiffs’ interest in challenging

the Omnibus Amendment is a purely economic interest, and

economic concerns are “not within the zone of interests

protected by NEPA,” ANR Pipeline Co v. FERC, 205 F.3d 403, 408

(D.C. Cir. 2000); Plaintiffs cannot sustain a claim under NEPA,

see Goethel, 2016 WL 4076831, at *8 (dismissing plaintiffs’ NEPA

claim because their “argument appears limited to the claim that

NMFS failed to adequately assess the economic impact of industry

funding”).

59 2. Plaintiffs’ NEPA Claims Fail on the Merits

Even if the Court found that NEPA was applicable to

Plaintiffs’ claims, Plaintiffs’ arguments would still fail on

the merits for the reasons stated below.

a. Defendants Took a “Hard Look” at Environmental Impacts

Plaintiffs argue that Defendants failed to take a “hard

look” at the “complete environmental impact” of the omnibus

measures, which created a process to implement future industry-

funded monitoring programs in other New England FMPs. Pls.’

Mot., ECF No. 18-1 at 47. Plaintiffs contend that despite

recognizing that future industry-funded monitoring programs will

have an “economic impact” if implemented, Defendants undertook

no analysis of these future costs. Id. at 47-48. In Plaintiffs’

view, Defendants’ inclusion of these measures into the Omnibus

Amendment “suggests an improper attempt to ‘artificially

divid[e] a major federal action into smaller components, each

without significant impact.’” Id. at 48 (quoting Jackson City v.

FERC, 589 F.3d 1284, 1290 (D.C. Cir. 2009)).

Under NEPA, the EA must “take[] a hard look at the

problem.” Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C.

Cir. 2011). “Although the contours of the ‘hard look’ doctrine

may be imprecise,” a court must at a minimum “‘ensure that the

agency has adequately considered and disclosed the environmental

60 impact of its actions and that its decision is not arbitrary or

capricious.’” Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C.

Cir. 2006) (quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def.

Council, Inc., 462 U.S. 87, 97–98 (1983)). A “hard look”

includes “considering all foreseeable direct and indirect

impacts . . . . [It] should involve a discussion of adverse

impacts that does not improperly minimize negative side

effects.” N. Alaska Env’t Ctr. v. Kempthorne, 457 F.3d 969, 975

(9th Cir. 2006) (internal quotation marks and citation omitted).

Here, the Court notes at the outset that while Plaintiffs

broadly claim that Defendants failed to take a “hard look” at

the environmental impacts of the future industry-funded

monitoring programs, Plaintiffs only identify alleged economic

impacts. See Pls.’ Mot., ECF No. 18-1 at 48 (stating that NEFMC

recognized the “economic impact” of future monitoring programs);

id. (noting that NEFMC had suggested a potential rise in

“monitoring costs” due to overlapping requirements); id. at 49

(arguing a NEPA violation because the “final EA provides no

detail about the potential economic impact”); id. (citing to

“meager evidence” in the administrative record regarding the

economic impact on the non-herring fleet); Pls.’ Reply, ECF No.

22 at 36 (arguing the Council refused to “recognize[] the

uniformly negative expected economic pact of future” monitoring

programs). As explained above, a party “must assert an

61 environmental harm in order to come within [NEPA’s] zone of

interests.” Gunpowder Riverkeeper, 807 F.3d at 274 (citing

Eckerd, 564 F.2d 447, 452 & n.10 (D.C. Cir. 1977); see Cachil

Dehe Band of Wintun Indians of Colusa Indian Cmty. v. Zinke, 889

F.3d 584, 606 (9th Cir. 2018) (“We have ‘consistently held that

purely economic interests do not fall within NEPA’s zone of

interests.’” (quoting Ashley Creek Phosphate, 420 F.3d at 940)).

However, even if NEPA was applicable here, the Court’s

conclusion would remain the same. Plaintiffs dispute Defendants’

determination that the omnibus measures “do not have any direct

economic impacts on fishery-related business or human

communities because they do not require the development of

[industry-funded monitoring] programs nor do they directly

impose any costs.” AR 17179. Plaintiffs contend that because

Defendants are aware of which New England FMPs are in the

position to implement industry-funded programs and “have access

to extensive information about the demographics and operation of

New England fisheries,” Defendants could conduct an analysis of

economic impact of future monitoring programs. Pls.’ Reply, ECF

No. 22 at 37. Defendants, on the other hand, argue that such

future costs are too speculative to include in the EA “[w]ithout

knowing the goals or the details of the measures to achieve

[future industry-funded monitoring] goals.” Defs.’ Opp’n, ECF

No. 20-1 at 50 (quoting AR 17741). Defendants state that “[t]he

62 economic impacts to fishing vessels and benefits resulting from

a future . . . program would be evaluated in the amendment to

establish that . . . program.” Id. (quoting AR 17741).

The Court agrees with Defendants. “The ‘rule of reason’

requires that consideration be given to practical limitations on

the agency’s analysis, such as the information available at the

time.” Wilderness Soc’y v. Salazar, 603 F. Supp. 2d 52, 61

(D.D.C. 2009) (citing Transmission Access Policy Study Group v.

FERC, 225 F.3d 667, 736 (D.C. Cir. 2000)). Because the omnibus

measures do not require the development of industry-funded

monitoring programs in all FMPs but rather set up a process to

be used if such programs are developed in the future, Defendants

did not know the location of any future monitoring program or

the future program’s specific goals at the time of the EA’s

preparation. Furthermore, “[t]hat [D]efendants may continue to

assess impacts as more information becomes available does not

indicate that defendants failed to take a ‘hard look’ at the

environmental consequences of its proposed action.” Id. at 62.

Requiring Defendants to analyze future industry-funded

monitoring programs without knowing where the programs will be

implemented would be unreasonable and beyond NEPA’s mandate. See

id.; see also WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41,

66-67 (D.D.C. 2019) (finding that defendant agency did not

violate NEPA when the agency “could not reasonably foresee the

63 projects to be undertaken on specific leased parcels, nor could

it evaluate the impacts of those projects on a parcel-by-parcel

basis”). For the same reasons the Court finds that Defendants

did not improperly segment the Omnibus Amendment. See Jackson

Cnty., 589 F.3d at 1291 (finding it reasonable that FERC treated

two projects separately when, among other thing, the projects

were geographically distinct and triggered separate agency

approval decisions).

b. Defendants Adequately Considered Alternatives and Potential Mitigation Measures

Plaintiffs next argue that Defendants violated NEPA because

they did not adequately address potential mitigation measures or

alternatives to the Omnibus Amendment. Pls.’ Mot., ECF No. 18-1

at 49. The Court disagrees.

An EA “must include a ‘brief discussion[]’ of reasonable

alternatives to the proposed action.” Myersville, 783 F.3d at

1323 (citation omitted). “An alternative is reasonable if it is

objectively feasible as well as reasonable in light of the

agency’s objectives.” Id. (alterations and quotation marks

omitted) (quoting Theodore Roosevelt Conservation P’ship, 661

F.3d at 72). An agency’s specification of the range of

reasonable alternatives is entitled to deference. Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir.

1991). Furthermore, an agency’s consideration of alternatives in

64 an EA “need not be as rigorous as the consideration of

alternatives in an EIS.” Myersville, 783 F.3d at 1323. “In

assessing whether an agency has shown that a project’s

environmental impacts are adequately addressed by mitigation

measures, a court must ask . . . whether the agency discussed

the mitigation measures ‘in sufficient detail to ensure that

environmental consequences have been fairly evaluated.’” Food &

Water Watch v. U.S. Dep’t of Agric., 451 F. Supp. 3d 11, 37

(D.D.C. 2020) (quoting Indian River Cnty., Fla. V. U.S. Dep’t of

Transp., 945 F.3d 515, 522 (D.C. Cir. 2019)). “NEPA does not,

however, ‘require agencies to discuss any particular mitigation

plans that they might put in place.’” Id. (quoting Theodore

Roosevelt Conservation P’ship, 616 F.3d at 503).

First, regarding consideration of alternatives, the Court

finds that Defendants have complied with NEPA’s requirements.

The EA included a brief discussion of seven alternatives to the

omnibus measures, including an option preserving the status quo,

“that would modify all the FMPs managed by the Council to allow

standardized development of future FMP-specific industry-funded

monitoring programs.” AR 17046-47. The EA also included a

discussion of multiple alternatives regarding increasing

monitoring in the Atlantic herring fishery specifically,

including a “no additional coverage” alternative, electric

monitoring options, and portside sampling options. See AR 17069-

65 101. Plaintiffs do not explain how the EA’s discussion of these

alternatives is inadequate, nor do they argue that there were

any alternatives that Defendants improperly excluded from

consideration. To the extent that Plaintiffs suggest that “at-

sea monitoring under the Omnibus Amendment in the herring

fishery is discretionary,” “unnecessary to advance conservation

goals,” and “less efficient than shoreside alternatives,” Pls.’

Opp’n, ECF No. 22 at 34-35; “NEPA does not compel a particular

result,” Myersville, 783 F.3d at 1324. “Even if an agency has

conceded that an alternative is environmentally superior, it

nevertheless may be entitled under the circumstances not to

choose that alternative.” Id.; see also Robertson, 490 U.S. at

350 (“If the adverse environmental effects of the proposed

action are adequately identified and evaluated, the agency is

not constrained by NEPA from deciding that other values outweigh

the environmental costs.”). Thus, in view of the cursory nature

of Plaintiffs’ argument, the Court finds that Defendants’

discussion of alternatives is sufficient to meet the NEPA

obligations. Cf. Airport Impact Relief, Inc. v. Wykle, 192 F.3d

197, 205 (1st Cir. 1999) (noting arguments raised “in a

perfunctory manner, unaccompanied by some effort at developed

argumentation” are waived when they “do not attempt to explain

the manner in which the environment will be significantly

affected”).

66 Second, regarding mitigation measures, the Court finds that

Defendants’ EA satisfies the relevant standard. Plaintiffs

contend that although the EA contains information regarding the

negative effects that industry-funded monitoring will have on

businesses and communities, the EA “downplays” such impacts “by

referring to the waiver of coverage for vessels that land less

than 50 metric tons of herring per trip—a mitigation measure

that applies to an especially small portion of the herring fleet

. . . —and by vaguely referring to potential adjustments by the

NEFMC in the next two years.” Pls.’ Mot., ECF No. 18-1 at 49

(citing AR 17250, 17327); see also Pls.’ Reply, ECF No. 22 at 38

(arguing that “the exemption for vessels landing under 50 metric

tons of herring will favor a sliver of the fleet and therefore

impermissibly benefit a select number of fishing communities”).

Again, Plaintiffs’ argument regards economic interests, not

environmental ones. See Gunpowder Riverkeeper, 807 F.3d at 274.

Furthermore, Plaintiffs’ challenge to the 50-metric-ton

exemption is ultimately based on a disagreement with the

substance of the exemption rather than on Defendants’ compliance

with NEPA’s procedural requirements. It is well established that

“[w]here NEPA analysis is required, its role is ‘primarily

information-forcing.’” Mayo v. Reynolds, 875 F.3d 11, 15-16

(D.C. Cir. 2017) (quoting Sierra Club v. FERC, 867 F.3d 1357,

1367 (D.C. Cir. 2017)). “As the Supreme Court has explained,

67 ‘[t]here is a fundamental distinction . . . between a

requirement that mitigation be discussed in sufficient detail to

ensure that environmental consequences have been fairly

evaluated, on the one hand, and a substantive requirement that a

complete mitigation plan be actually formulated and adopted, on

the other.’” Id. (quoting Robertson, 490 U.S. at 352). In other

words, “NEPA is ‘not a suitable vehicle’ for airing grievances

about the substantive policies adopted by an agency, as ‘NEPA

was not intended to resolve fundamental policy disputes.’” Id.

(quoting Grunewald v. Jarvis, 776 F.3d 893, 903 (D.C. Cir.

2015)).

To the extent that Plaintiffs refer to environmental

impacts in arguing that the Council’s plan to re-evaluate the

Atlantic herring monitoring program in two years is “vague,”

Pls.’ Mot., ECF No. 18-1 at 49; the EA reflects that Defendants

were aware of the environmental impacts of the Omnibus Amendment

and its alternatives and the need to incorporate mitigation

efforts to reduce any negative impacts. See, e.g., AR 17177-241.

The omnibus measures were determined to have “no direct

impacts” on biological resources or the physical environment.

Id. at 17179. The industry-funded monitoring program in the

Atlantic herring fishery was determined to have a “negligible”

impact on the physical environment and an “indirect” impact on

biological resources because “they affect levels of monitoring

68 rather than harvest specifications or gear requirements.” Id. at

17179, 17316; see also id. at 17326 (“The proposed action is not

expected to cause significant environmental impacts because it

establishes a monitoring program, rather than specifying harvest

specifications, gear requirements, or changes in fishing

behavior.”). The EA then took into account “variations and

contingencies in [the Atlantic herring] fishery by adapting

coverage levels to available funding or logistics and allowing

vessels to choose electronic monitoring and portside sampling

coverage, if it is suitable for the fishery and depending on a

vessel owner’s preference.” Id. at 17315. The EA explained that

one of the “preferred” alternatives “would require the Council

to revisit the preferred Herring Alternatives two years after

implementation and evaluate whether changes to management

measures are necessary.” Id. “This requirement to evaluate the

impacts of increased monitoring in the herring fishery takes

into account and allows for variations and contingencies in the

fishery, fishery resources, and catches.” Id. Given that the

Omnibus Amendment’s measures may “increase monitoring and that

may improve management of the fishery and provide a better

opportunity for achieving optimum yield,” resulting in indirect

benefits for the environment, id. at 17312; Plaintiffs have

failed to show that the two-year re-examination provision is an

inadequate mitigant under NEPA.

69 Finally, Plaintiffs contend that Defendants have used the

“uncertainty of future management efforts,” particularly the

two-year re-examination provision, “as a shield to avoid fuller

environmental impact analysis.” Pls.’ Reply, ECF No. 22 at 38

(quotation marks omitted). This argument is without merit. As

explained above, the EA includes a thorough description of

potential environmental impacts, and Plaintiffs fail to point to

any specific deficiencies in Defendants’ discussion of

environmental impacts or mitigation measures.

Accordingly, the Court finds that, even if the Court found

that NEPA was applicable to Plaintiffs’ claims, the EA’s

discussion of environmental impacts and mitigation measures

complies with NEPA’s mandate.

c. Defendants Did Not Predetermine the Outcome

Plaintiffs next argue that “Defendants pre-judged the

outcome of the EA in favor of the NEFMC’s preferred

alternatives.” Pls.’ Mot., ECF No. 18-1 at 49. According to

Plaintiffs, “[n]othing in the administrative record suggests

that NEFMC and Defendants seriously considered preserving the

status quo.” Id. at 50. As evidence, Plaintiffs point to

sections of the administrative record in which Defendants state

that a cost-benefit analysis could not be “completed” before the

Council selected its preferred alternatives, and that the

Omnibus Amendment’s purpose was to “establish[] a clear

70 delineation of costs for monitoring between the industry and

NMFS for all FMPs.” Id.; Pls.’ Reply, ECF No. 22 at 39.

Plaintiffs also assert that Defendants received “overwhelmingly

negative feedback from stakeholders and regulated parties,”

which they argue would cause a “reasonable regulator” to “think

twice.” Pls.’ Mot., ECF No. 18-1 at 50; see also Pls.’ Reply,

ECF No. 22 at 39.

The standard for demonstrating predetermination is high.

See Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d

692, 714 (10th Cir. 2010); Stand Up for Calif.! v. U.S. Dep’t of

the Interior, 204 F. Supp. 3d 212, 304 (D.D.C. 2016).

“[P]redetermination occurs only when an agency irreversibly and

irretrievably commits itself to a plan of action that is

dependent upon the NEPA environmental analysis producing a

certain outcome, before the agency has completed that

environmental analysis.” Forest Guardians, 611 F.3d at 714.

Indeed, “NEPA does not require agency officials to be

‘subjectively impartial,’” id. at 712 (quoting Env’t Def. Fund,

Inc. v. Corps of Eng’rs of the U.S. Army, 470 F.2d 289, 295 (8th

Cir. 1972)); and “[b]ias towards a preferred outcome does not

violate NEPA so long as it does not prevent full and frank

consideration of environmental concerns,” Comm. of 100 on the

Fed. City v. Foxx, 87 F. Supp. 3d 191, 205–06 (D.D.C. 2015).

Thus, in determining what is an “irreversible and irretrievable”

71 commitment, courts in this Circuit have looked “to the practical

effects of [an] agency’s conduct rather than whether the conduct

suggests subjective agency bias in favor of the project.” Id. at

207.

Defendants’ actions do not rise to the level of

predetermination. Regardless of whether Defendants had a bias

toward implementing some type of increased monitoring program in

the region, the extensive administrative record demonstrates

that any preferred outcome did not “prevent full and frank

consideration of environmental concerns.” Id. at 205-06.

Furthermore, while Plaintiffs note that Defendants received

negative feedback during the comment periods for the Omnibus

Amendment and its implementing regulations, Plaintiffs do not

contend that Defendants ignored these comments or provided

insufficient responses. See Pls.’ Mot., ECF No. 18-1 at 49-50.

And as Defendants point out, Defendants likewise received

positive feedback advocating for greater monitoring coverage

than the alternative that was selected. Defs.’ Opp’n, ECF No.

20-1 at 54 (citing AR 17668-71, 17742). Put simply, an agency

“may work toward a solution, even its preferred one,” Stand Up

for Calif.!, 410 F. Supp. 3d at 61; and here, Defendants did not

“irreversibly and irretrievably” commit itself to the measures

within the amendment prior to conducting its environmental

analysis, see Wyo. Outdoor Council v. U.S. Forest Serv., 165

72 F.3d 43, 49 (D.C. Cir. 1999) (explaining that issuing leases

such that agency no longer retains “the authority to preclude

all surface disturbing activities” constitutes an irretrievable

commitment of resources (quoting Sierra Club v. Peterson, 717

F.2d 1409, 1415 (D.C. Cir. 1983)); Flaherty v. Bryson, 850 F.

Supp. 2d 38, 71 (D.D.C. 2012) (“An administrator’s statement of

an opinion, based upon review of the action’s subject matter and

relevant regulatory guidance, suggests conscious thought rather

than prejudgment, and does not lead to the conclusion that the

administrator would not change his or her mind upon review of

the full EA.”).

Accordingly, the Court concludes that Defendants did not

predetermine the outcome of the EA.

d. Defendants Were Not Required to Supplement the EA

Plaintiffs also argue that Defendants violated NEPA because

they did not supplement the EA following herring catch

reductions in 2019 and 2020, which Plaintiffs contend “will

significantly impact the economics of the fishery and the

viability of the fleet under an industry-funded monitoring

regime.” Pls.’ Reply, ECF No. 22 at 39. Plaintiffs argue that

the EA “contains no data” supporting Defendants’ finding that

“increases in total revenue from other fisheries” would

“mitigate the negative impacts of reductions to the herring ACL

73 and associated revenue.” Pls.’ Mot., ECF No. 18-1 at 51; see

also Pls.’ Reply, ECF No. 22 at 42.

Under NEPA, an agency must prepare a supplement to an EA

when “[t]here are significant new circumstances or information

relevant to environmental concerns and bearing on the proposed

action or its impacts.” 40 C.F.R. § 1502.9(d)(1)(ii). However,

as the Supreme Court has explained, under the “rule of reason,”

an agency need not supplement an EA “every time new information

comes to light” after the EA is finalized. Marsh v. Or. Nat.

Res. Council, 490 U.S. 360, 373 (1989). Rather, “if the new

information shows that the remaining action will affect the

quality of the environment ‘in a significant manner or to a

significant extent not already considered,’” a supplemental must

be prepared. Nat’l Comm. for the New River v. FERC, 373 F.3d

1323, 1330 (D.C. Cir. 2004) (quoting Marsh, 490 U.S. at 374). In

addition, the D.C. Circuit has instructed that a supplement “is

only required where new information ‘provides a seriously

different picture of the environmental landscape.’” City of

Olmsted Falls v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002); see

also Pub. Emps. for Env’t Responsibility v. U.S. Dep’t of the

Interior, 832 F. Supp. 2d 5, 29–30 (D.D.C. 2011) (“[W]hether a

change is ‘substantial’ so as to warrant [a supplement] is

determined not by the modification in the abstract, but rather

74 by the significance of the environmental effects of the

changes.”).

Here, Defendants reasonably concluded that the herring

catch reductions did not “significantly transform the nature of

the environmental issues raised in the [EA].” Nat’l Comm. for

the New River, 373 F.3d at 1330-31 (finding that new information

did not “seriously change[] the environmental landscape” where

the agency’s process for evaluating the environmental impact was

“comprehensive”). First, Plaintiffs do not point to any evidence

that herring catch reductions will have significant

environmental impacts on industry-funded monitoring programs.

See Pls.’ Mot., ECF No. 18-1 at 51; Pls.’ Reply, ECF No. 22 at

39-42. Plaintiffs refer solely to the “economics of the fishery

and the viability of the fleet” and do not attempt to show how

the fleet’s revenue stream is “interrelated” with “natural or

physical environmental effects.” 40 C.F.R. § 1508.1(m) (defining

“human environment”); cf. Blue Ridge, 716 F.3d at 198 (rejecting

argument that new environmental reports were required because

the argument “relie[d] on Petitioners’ elision of ‘safety

significance’ with ‘environmental significance’”). Because “NEPA

does not require the agency to assess every impact or effect of

its proposed action, but only the impact or effect on the

environment,” Metro. Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766, 772 (1983); Defendants did not run afoul

75 of NEPA’s requirements in deciding a supplemental EA was not

needed, see Stand Up for Calif.!, 410 F. Supp. 3d at 55-56

(finding that alleged impacts to the public safety did not fall

within the Court’s NEPA review because it was not an

“environmental concern”).

Second, the record indicates that Defendants undertook a

careful evaluation of the significance of the herring catch

reductions prior to determining whether a supplement was needed.

See Marsh, 490 U.S. at 378 (instructing that when reviewing an

agency’s decision not to supplement an environmental impact

statement, courts must be satisfied that “the agency has made a

reasoned decision based on its evaluation of the significance—or

lack of significance—of the new information”). Defendants

explained that “[t]he EA describes the economic impacts of

herring measures on fishery-related businesses and human

communities as negative,” but that “[t]he economic impact of

industry-funded monitoring coverage on the herring fishery is

difficult to estimate because it varies with sampling costs,

fishing effort, SBRM coverage, price of herring, and

participation in other fisheries.” AR 17737. Defendants

estimated that “at-sea monitoring coverage associated with the

50-percent coverage target has the potential to reduce annual

[returns-to-owner] for vessels with Category A or B herring

permits up to 20 percent and up to an additional 5 percent for

76 midwater trawl access to Groundfish Closed Areas,” and noted

that “[e]lectronic monitoring and portside sampling may be a

more cost effective way for herring vessels to satisfy industry-

funded monitoring requirements.” Id.

Defendants then compared herring revenue generated by

Category A and B herring vessels from 2014 to 2018 to assess the

economic impact of a reduction in herring catch. Id. Based on

this assessment, Defendants determined that “[e]ven though the

2018 [annual catch limit (“ACL”)] was reduced by 52 percent

(54,188 mt) from the 2014 ACL, the impact on 2018 revenue was

not proportional to the reduction in ACL and differed by gear

type.” Id. Defendants explained that the change in revenue

between 2014 and 2018 was affected by several factors, “such as

the availability of herring relative to the demand and vessel

participation in other fisheries.” Id. at 17738. Defendants also

considered how the level of fishing effort, SBRM coverage, and

certain mitigation measures would affect the economic impact of

industry-funded monitoring. Id. at 17738-39. After analyzing

these factors, Defendants determined that reduced herring catch

and its impacts fell within the initial EA’s scope and that a

supplement was unnecessary because: “(1) the action is identical

to the proposed action analyzed in the EA and (2) no new

information or circumstances relevant to environmental concerns

or impacts of the action are significantly different from when

77 the EA’s finding of no significant impact was signed on December

17, 2018.” Id. at 17739.

As the D.C. Circuit has explained, “[t]he determination as

to whether information is either new or significant ‘requires a

high level of technical expertise’; thus, [courts] ‘defer to the

informed discretion of the [agency].’” Blue Ridge, 716 F.3d at

196-97 (quoting Marsh, 490 U.S. at 377); Advocates for Hwy. &

Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136,

1150 (D.C. Cir. 2005) (“[C]ourts are not authorized to second-

guess agency rulemaking decisions . . . .”). In view of

Defendants’ considered analysis, Plaintiffs simply have not

demonstrated how Defendants’ conclusion was arbitrary or

capricious. Accordingly, the Court does not find that the

Defendants’ conclusion was so deficient as to suffer from “want

of reasoned decisionmaking.” Advocates for Hwy. & Auto Safety,

429 F.3d at 1150.

H. The Omnibus Amendment Does Not Violate the Regulatory Flexibility Act

Plaintiffs next argue that Defendants failed to meet their

obligations under the Regulatory Flexibility Act (“RFA”) when

promulgating the Omnibus Amendment.

Under the RFA, agencies must “consider the effect that

their regulation will have on small entities, analyze effective

alternatives that may minimize a regulation’s impact on such

78 entities, and make their analyses available for public comment.”

Nat’l Women, Infants, & Children Grocers Ass’n v. Food &

Nutrition Serv., 416 F. Supp. 2d 92, 99 (D.D.C. 2006). The RFA

requires agencies issuing regulations likely to have an “impact”

on “small entities” to prepare an initial regulatory flexibility

analysis (“IRFA”) describing the effect of the proposed rule on

small businesses and discussing alternatives that might minimize

adverse economic consequences upon publishing a notice of

proposed rulemaking. See 5 U.S.C. § 603. Then, when promulgating

the final rule, the agency must prepare a final regulatory

flexibility analysis (“FRFA”), to be made available to the

public and published in the Federal Register. See id. § 604.

“Although the RFA compels an agency to make substantive

determinations, a court cannot find an agency violated the RFA

merely because it disagrees with those determinations.” Alfa

Int’l Seafood v. Ross, 264 F. Supp. 3d 23, 67 (D.D.C. 2017). The

D.C. Circuit has explained that the RFA is “[p]urely

procedural.” U.S. Cellular Corp. v. FCC, 254 F.3d 78, 88 (D.C.

Cir. 2001) (stating that “RFA section 604 requires nothing more

than that the agency file a FRFA demonstrating a ‘reasonable,

good-faith effort to carry out [RFA’s] mandate.’” (quoting

Alenco Commc’ns, Inc. v. FCC, 201 F.3d 608, 625 (5th Cir.

2000)). A court does not “evaluate whether the agency got the

required analysis right, but instead examines whether the agency

79 has followed the procedural steps laid out in the statute. What

is required of the agency is not perfection, but rather a

reasonable, good-faith effort to take those steps and therefore

satisfy the statute’s mandate.” N.C. Fisheries Ass’n, 518 F.

Supp. 2d at 95. “Thus, in assessing the adequacy of an FRFA,

courts look to see whether the agency made a reasonable attempt

to address all five required elements in its FRFA, and do not

measure the FRFA under a standard of ‘mathematical exactitude.’”

Alfa Int’l Seafood, 264 F. Supp. 3d at 67 (quoting Associated

Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 114 (1st Cir.

1997)).

Here, Plaintiffs argue that the NEFMC and Defendants failed

to comply with the RFA because the IRFA and the FRFA contained

“conclusory findings” regarding the economic effects of the

Omnibus Amendment that are “facially unreasonable.” Pls. Mot.,

ECF No. 18-1 at 52. Specifically, Plaintiffs contend that

Defendants failed to consider: (1) “economic impacts associated

with the omnibus alternatives,” id. (citing AR 17339); (2) “the

full set of costs” that the industry-funded monitoring

alternatives would “impose on regulated entities,” including

“the danger of overlapping monitoring requirements, the effect

of significant quota cuts . . . , and the actual feasibility of

alternatives,” id. (citing AR 17341-46); and (3) an “explanation

for their conclusion that certain businesses ‘were more likely

80 to exit the fishery if the cost of monitoring [were] perceived

as too expensive,’” id. at 52-53 (citing AR 17342).

As an initial matter, the Court notes that Plaintiffs’

arguments appear to be a “non-starter” because Plaintiffs’

motion only cites to alleged compliance failures within the IRFA

and do not point to any alleged deficiencies within the FRFA.

Alfa Int’l Seafood, 264 F. Supp. 3d at 67. Pursuant to section

611(a) of the RFA, the adequacy of an agency’s IRFA is not

reviewable. See 5 U.S.C. § 611(a) (“[A] small entity that is

adversely affected or aggrieved by final agency action is

entitled to judicial review of agency compliance with the

requirements of sections 601, 604, 605(b), 608(b), and 610 in

accordance with chapter 7.”). Thus, the Court lacks jurisdiction

to consider Plaintiffs’ challenge to Defendants’ IRFA. See

Allied Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 79 (D.C.

Cir. 2000).

Even if the Court construed Plaintiffs’ three arguments as

“attack[ing] the overall adequacy of Defendants’ economic impact

analysis,” Pls.’ Reply, ECF No. 22 at 42; the arguments would

still fail. First, while Plaintiffs contend that Defendants did

not consider the economic impacts of the omnibus measures, the

IRFA and the FRFA explain that those measures are

“administrative and have no direct economic impacts.” AR 17339,

17744. Indeed, the measures explicitly set out the

81 administrative process to develop and maintain future industry-

funded monitoring programs in other New England FMPs.

Plaintiffs’ contention that “Defendants and the NEFMC conceded

its omnibus measures will have ‘direct negative economic impacts

to fishing vessels,” Pls.’ Reply, ECF No. 22 at 43, is

misleading. In making that statement, Defendants were referring

to potential future programs and explained that “any direct

negative economic impacts to fishing vessels resulting from a

future [industry-funded monitoring] program would be evaluated

in the amendment to establish that [industry-funded monitoring]

program.” AR 17179; cf. Associated Fishers of Me., 127 F.3d 104

at 110 n.5 (finding that, because “the Secretary considered the

Coast Guard’s estimate to be budgetary in nature and not rooted

in cost increases which were likely to accompany the

implementation of Amendment 7,” “[t]he Secretary must be

accorded some latitude to make such judgment calls”).

Defendants’ conclusion is reasonable.

Second, regarding Plaintiffs’ argument that Defendants did

not consider the “full set of costs” that would be imposed on

regulated entities, Pls.’ Mot., ECF No. 18-1 at 52; the record

demonstrates that Defendants underwent a reasoned analysis of

the economic impacts that vessels would face upon the

implementation of the Omnibus Amendment and that Defendants had

taken steps to minimize economic impacts on affected entities.

82 See AR 17341-46. While it is possible that the agency could have

included further detail or more study, the record nonetheless

demonstrates that Defendants engaged in a “reasonable, good

faith effort” to carry out the RFA’s mandate. U.S. Cellular

Corp., 254 F.3d at 89; see also Little Bay Lobster Co. v. Evans,

352 F.3d 462, 471 (1st Cir. 2003) (noting that the RFA does not

include a requirement as to the amount of detail with which an

agency must address specific comments).

Third, Plaintiffs argue that Defendants failed to explain

their conclusion that certain businesses “were more likely to

exit the fishery if the cost of monitoring [were] perceived as

too expensive.” Pls.’ Mot., ECF No. 18-1 at 52-53 (citing AR

17342). “[W]here the agency has addressed a range of comments

and considered a set of alternatives to the proposal adopted,

the burden is upon the critic to show why a brief response on

one set of comments or the failure to analyze one element as a

separate alternative condemns the effort.” Little Bay Lobster

Co., 352 F.3d at 471. Plaintiffs have failed to make such a

showing here.

Additionally, Southern Offshore Fishing Association v.

Daley, 995 F. Supp. 1411 (M.D. Fla. 1998), upon which Plaintiffs

rely, is distinguishable. In that case, the United States

District Court for the Middle District of Florida found that an

FRFA prepared by NMFS did not comply with the requirements of

83 the RFA. Unlike in Southern Offshore Fishing, however,

Defendants here prepared both an IRFA and a FRFA. See id. at

1436 (“NMFS could not possibly have complied with § 604 by

summarizing and considering comments on an IRFA that NMFS never

prepared.”); AR 17744 (“NMFS prepared a final regulatory

flexibility analysis (FRFA) in support of this action. The FRFA

incorporates the initial RFA, a summary of the significant

issues raised by the public comments in response to the initial

RFA, NMFS responses to those comments, and a summary of the

analyses completed in support of this action.”). And unlike in

Southern Offshore Fishing, Plaintiffs here have not “point[ed]

to plentiful record evidence undermining NMFS’s certifications.”

Id. Instead, Plaintiffs’ motion merely points to three pages in

the IRFA. “Such a meager citation to the record simply cannot

upend the deference due to the Department under the RFA.” Alfa

Int’l Seafood, 264 F. Supp. 3d at 68.

Accordingly, the Court finds that Defendants fulfilled the

requirements of the RFA in promulgating the Omnibus Amendment.

I. The Approval and Finalization of the Omnibus Amendment Was Procedurally Proper

Finally, Plaintiffs argue that the process of approving and

finalizing the Omnibus Amendment was procedurally irregular and

raises “procedural due process concerns.” Pls.’ Mot., ECF No.

18-1 at 54. However, a review of the MSA’s provisions governing

84 the Secretary’s review of FMPs, amendments, and proposed

regulations demonstrates that Defendants followed the proper

procedure.

Under the MSA’s regulatory framework, once the Council

transmits an FMP or amendment to the Secretary, the Secretary

must do two things: (1) “immediately commence a review of the

plan or amendment to determine whether it is consistent with the

national standards, the other provisions of this chapter, and

any other applicable law”; and (2) “immediately publish in the

Federal Register a notice stating that the plan or amendment is

available and that written information, views, or comments of

interested persons on the plan or amendment may be submitted to

the Secretary during the 60-day period beginning on the date the

notice is published.” 16 U.S.C. § 1854(a)(1). Once the comment

period has closed, the Secretary then has 30 days to approve,

disapprove, or partially approve an FMP or amendment. Id. §

1854(a)(3). “If the Secretary does not notify a Council within

30 days of the end of the comment period of the approval,

disapproval, or partial approval of a plan or amendment, then

such plan or amendment shall take effect as if approved.” Id.

Proposed regulations implementing an FMP or amendment that

the Council deems “necessary or appropriate” must be submitted

to the Secretary “simultaneously” with the FMP or amendment. Id.

§ 1853(c). Once the Secretary receives the proposed regulations,

85 “the Secretary shall immediately initiate an evaluation of the

proposed regulations to determine whether they are consistent

with the [FMP], plan amendment, [the MSA] and other applicable

law.” Id. § 1854(b)(1). The Secretary must make a determination

within 15 days of initiating such evaluation, and, if the

Secretary approves the proposed regulations, she must publish

the regulations for comment in the Federal Register, “with such

technical changes as may be necessary for clarity and an

explanation of those changes.” Id. § 1854(b)(1)(A). There must

be a public comment period of between 15 to 60 days, and, after

the public comment period has expired, the Secretary must then

promulgate the final regulations within 30 days, consulting with

the Council on any revisions and explaining the changes in the

Federal Register. Id. § 1854(b)(3).

Here, it is “undisputed” that Defendants “followed the

statutorily prescribed timelines for approval of an FMP

amendment and implementing regulations.” See Pls.’ Reply, ECF

No. 22 at 44. Instead, Plaintiffs argue that “[t]he

irregularities and due process concerns arise from Defendants

presuming the legality of the Omnibus Amendment and proposing

implementing regulations before any final approval decision for

the underlying FMP amendment.” Id. at 44-45. However,

Plaintiffs’ argument is belied by the text of the statute. The

MSA clearly contemplates such a situation given its mandate that

86 proposed regulations be submitted “simultaneously with the plan

or amendment under section 1854 of this title,” 16 U.S.C. §

1853(c); and the agency also confirms that this is its usual

practice, see AR 17741 (“It is our practice to publish an NOA

and proposed rule concurrently.”). Furthermore, Defendants

appropriately set a 60-day comment period for the FMP amendment

and a 45-day comment period for the proposed regulations, with

the public comments for both overlapping for 13 days. See id.

Both the notice of the amendment and the proposed regulations

included a statement explaining that any public comments

received on the amendment or the proposed rule during the

amendment’s comment period would be considered in the decision

on the amendment. Id. The public thus had fair notice and a

meaningful opportunity to participate in the process. See, e.g.,

Conn. Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d

525, 528 (D.C. Cir. 1982).

Finally, Plaintiffs’ description of an inappropriate

“secret approval” of the Omnibus Amendment “in a non-public

letter [to the Council] that [NOAA] never officially

disseminated,” Pls.’ Mot., ECF No. 18-1 at 54; lacks any basis.

Rather, NOAA acted as the MSA requires: upon approval of an FMP

or amendment, there must be “written notice to the Council” of

the Secretary’s decision. 16 U.S.C. § 1854(a)(3). No further

publication is statutorily required.

87 IV. Conclusion

For the aforementioned reasons, the Court DENIES

Plaintiffs’ Motion for Summary Judgment, GRANTS Defendants’

Cross-Motion for Summary Judgment, and GRANTS Defendants’ Motion

to Exclude. An appropriate Order accompanies this Memorandum

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge June 15, 2021